GREAT  SPEECH 


Hon.  WILLIAM  M.  EVARTS 


RAPID  TRANSIT 


N  E  W    Y  0  R  K  : 
Evening  Post  Steam  Presses,  208  Broadway,  corner  Fit.ton  Street. 


1876. 


1 


i£x  ICtfarts 


SEYMOUR  DURST 


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Avery  Architectural  and  Fine  Arts  Library 
Gift  of  Seymour  B.  Durst  Old  York  Library 


GREAT  SPEECH 


HON.  WILLIAM  M.  EVARTS 


RAPID  TRANSIT 


NEW  YORK: 
Evening  Post  Steam  Presses,  '208  Broadway,  corner  Fuxton  Street. 


1876. 


72$ 


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ARGUMENT 

OF 

Hon.  WILLIAM  M.  EVARTS. 


Mr.  Evarts  opened  for  the  plaintiff  as  follows  : 

If  your  Honor  please  : 

This  action,  an  equitable  one,  is  brought  by  the  Sixth  Ave- 
nue Railroad  Co.,  a  corporation  created,  authorized  and 
emploj^ed  for  the  transfer  of  passengers  in  this  city,  in  accom- 
modation of  the  public  needs  and  in  co-operation  with  the  other 
avenues  by  which  the  needs  of  the  public  are  also  served  by 
similar  modes  of  transfer,  to  wit,  a  horse  railroad  company. 
These  rights  are  vested  in  it  by  an  authentic  contract  between 
the  city  of  New  York  and  this  association,  as  it  then  was,  now 
corporation,  confirmed  by  the  Legislature  of  the  State  and  now 
unquestioned.  The  part  of  their  route  as  the  principal  part  of 
their  line,  which  is  now  brought  in  question  by  the  interference 
of  the  defendants,  of  which  I  am  to  speak,  is  the  Sixth  avenue  ; 
for  there  at  the  time  and  before  the  filing  of  this  bill  the 
threatened  invasion  of  their  rights  and  interference  with  their 
enjoyment  of  the  street  for  the  purpose  of  the  transfer  of  pas- 
sengers was  interdicted. 

The  bill  sets  out  with  entire  completeness  the  manner  and 
form  through  which  this  plaintiff  became  vested  with  its  rights 
in  the  street,  and  with  its  important  faculties  and  powers,  in 
substance,  and  it  is  not  necessary  now,  for  the  whole  subject  is 
familiar  to  your  Honor,  and  every  day's  observation  shows 
what  the  business  is  and  how  it  is  conducted.  The  business  of 
this  company  is  substantially  this,  that  the  corporation  of  the 
city  of  New  York  having  such  title  in  its  streets  as  a  matter  of 
proprietary  ownership  and  of  public  trust  and  duty  as  grows 
out  of  the  condemnation  or  cession  of  this  street  property,  the 


4 


fee  of  the  street,  made  to  them  under  the  laws  of  1813,  and  in 
subsequent  changes  of  those  laws  granted  the  right  to  this  asso- 
ciation to  construct  and  operate  a  certain  railroad  for  cars 
driven  by  horses  and  with  tracks  regulated  by  the  Common 
Council,  and  with  time  and  frequency  of  the  running  of  the  cars, 
in  some  degree  at  least,  regulated  by  the  Common  Council. 
And  thereupon  this  association  took  upon  itself  a  corporate 
form,  and  bjT  the  Legislature  of  the  State  was  confirmed  in 
these  rights.  All  the  elements  of  a  definite  and  valid  contract 
between  the  city  of  New  York  and  this  corporation  are  dis- 
closed in  the  documents  relating  to  the  subject,  and  whatever 
there  is  of  constitutional  predicate  of  contract  as  between  pri- 
vate parties  as  against  invasion  by  legislation  of  the  State  or 
other  action  of  State  authority,  is  possessed  by  this  corpora- 
tion in  respect  to  these  rights  and  privileges  and  property 
under  the  contract  concerning  the  same  with  the  city  of  New 
York.  So  strong  and  important,  so  definite  and  efficient  is 
this  right  by  contract  from  the  city,  that  in  an  exploration  of 
the  basis  of  it  in  the  authority  of  the  city,  the  highest  court  of 
the  State  determined  that  it  was,  ever  is,  definite,  and  so  dur- 
able an  operation  of  right  in  the  streets  of  the  city  that  it  was 
incompetent  for  the  said  authorities  unaided  by  State  legisla- 
tion to  confer  it.  That  it  gave  a  freehold  interest  in  the  streets 
of  the  city  for  the  purposes  of  the  public  trust  and  use  of  a 
horse  railroad,  and  that  under  the  authorities  then  existing  in 
the  government  of  the  city  of  New  York,  it  was  incompetent 
for  them  without  an  enabling  act,  although  they  had  the 
fee  of  the  street,  although  they  had  the  whole  administration 
of  the  use  and  employment  of  the  street  for  traffic  either  of 
persons  or  of  merchandise  ;  yet  they  could  not  so  interfere 
with  the  general  and  vested  right  as  to  impress  as  definite  and 
durable  authority  upon  the  action  of  any  selective  creatures, 
and  thereupon  authority  of  the  Legislature  was  given  with  full 
consideration  of  the  consequences  that  would  come  from  any 
such  confirmation  of  authority  to  this  railroad  company,  and  it 
now  possesses  it. 

What  I  have  said  of  this  railroad  company  is,  I  understand, 
substantially,  if  not  entirely,  true  of  all  the  other  horse  railroads* 
that  in  their  collective  agency  are  transferring  now,  day  by 
day  and  hour  by  hour,  the  public  of  this  city  as  the  calls  of 
business  or  pleasure  invite  from  one  part  of  it  to  another.  It 
will  be  seen,  then,  that  no  question,  if  doubt  be  thrown  upon 


5 


the  tenure,  the  verity,  and  security  of  this  property  of  this 
road  and  of  all  these  other  roads,  no  question  can  affect 
either  older  private  interests  or  greater  public  convenience 
and  use  than  attends  ?this  very  franchise  now  exercised  and 
now  brought  into  defense  of  itself  against  invasion. 

Following  upon  this  confirmation  of  their  rights,  large  ex- 
penditures have  been  made  by  this  railroad  company  of 
amounts  numbered  by  millions  of  dollars,  and  now,  with  the 
acceptance  and  constantly  increasing  approval  of  the  public  of 
this  city  within  those  limits  that  are  imposed  by  the  necessity 
of  keeping  the  streets  open  for  the  general  use  of  the  public, 
and  of  having  a  railroad  therefore  that  is  incompatible  with 
the  occupation  of  the  abutting  lots  for  the  purposes  of  busi- 
ness and  residence,  this  railroad,  these  street  railroads,  are 
now  performing  principal  service  in  the  conveyance  of  passen- 
gers up  and  down  this  island. 

I  will  ask  your  Honor's  attention  to  the  magnitude  of  the 
service  they  perform,  for  it  bears  definitely  both  upon  the 
question  of  the  value  of  the  public  service  in  respect  to  the 
volume  of  it  and  to  the  convenience  of  the  public,  and  directly 
further  upon  the  question  how  the  interference  of  which  we 
complain,  and  which  we  bring  definitely  to  your  Honor's  ap- 
prehension, does  operate  in  restriction  of  its  public  service  and 
in  restriction  of  its  corporate  rights.  The  entire  railroad 
transfer  of  passengers  in  all  the  steam  railroads  of  this  State, 
in  combined  length  of  9,000  miles,  is  but  35,000,000  of  persons 
in  a  year.  This  Sixth  Avenue  Railroad  moves  16,000,000  on  its 
own  line  in  a  year.  The  Third  Avenue  Railroad  moves  nearly 
twice  as  many  ;  and  the  Eighth,  and  perhaps  the  Seventh, 
transfer  a  larger  number  than  the  Sixth.  Your  honor  sees, 
therefore,  the  magnitude  of  any  steam  apparatus  in  respect  of 
track,  or  trains,  or  engines,  that  can  undertake  to  compete  with 
this,  with  these  modes  of  transfer  in  meeting  the  objects  and 
desires  of  our  public. 

It  opens  our  observation  also  to  the  obvious  requirements  of 
the  structure  and  the  equipment  to  be  operated  by  steam,  and 
induces  a  comparison  thereof,  both  in  respect  of  the  public 
convenience  that  may  be  fairly  hoped  or  imagined  to  be  reaped 
from  it  as  compared  with  what  is  now  served  by  these  horse 
railroads,  and  if  that  public  convenience  can  be  expected  to 
be  subserved  from  the  magnitude  of  the  operation  of  this 
enginery,  and  upon  this  structure,  that  must  be  all  the  while 


6 


going  on  within  the  narrow  limits  of  a  street  of  the  city  of 
New  York. 

Now,  the  defendant  is  also  a  corporation,  deriving  its  power 
from  legislation  of  the  State,  created  by  a  special  charter,  with 
well  defined  and  well  circumscribed  authority  in  respect  of  its 
functions,  its  faculties,  its  structure  and  its  appliances.  The 
legislative  will  has  been,  whether  intelligently  or  not,  with  con- 
siderable circumspection  and  fidelity,  undertaken  to  protect 
the  streets  of  the  city  both  in  the  rights  and  benefits  of  occu- 
pation by  the  abutting  proprietors,  and  in  the  needs  of  the 
public  for  business  and  for  passengers  in  the  traffic  on  the 
street  itself  against  invasion  and  interference.  When  we  come 
to  consider  the  power  which  the  act  incorporating  this  defend- 
ant's corporation  confers,  if  it  were  a  practical  question,  your 
Honor  would  be  called  upon  to  determine  whether  that  was  an 
excuse  of  legislative  authority,  whether  it  did  invade  the  rights 
of  property,  whether  of  abutting  proprietors  or  of  this  corpo- 
ration, or  the  rights  as  cestui  que  trust  in  the  right  of  this  ave- 
nue for  traffic  on  the  part  of  the  public  at  large ;  but  that  act 
will  now  be  considered  by  your  Honor  only  sufficiently  to  de- 
termine that  in  the  construction  of  it,  in  its  actual  lorin  and 
proportions,  an  interference  with  private  and  public  interests 
in  the  streets  is  attempted  by  the  corporation  in  the  actual 
movements  towards  the  foundation  and  the  superstructure  of 
this  railroad  track,  only  sufficiently  show  that  there  is  in  this 
special  act  of  incorporation  no  pretense  of  authority  to  go  orr 
with  any  such  structure  as  is  predicated  at  the  moment.  And 
the  answer  of  the  defendant  leaves  us  no  doubt,  by  their  dis- 
tinct admission  of  the  actual  character  of  the  structure,  that 
they  are  proposing,  being,  as  we  say  in  our  bill  is  "  threat- 
ened," precisely  that  and  nothing  else,  that  this  special  incor- 
porating act  does  not  give  them  authority  for. 

When  by  an  act  passed  in  1875,  said  to  be,  indeed,  by  the 
amended  Constitution,  which  went  into  effect  prior  to  its  pas- 
sage, required  to  be  general  in  its  nature,  it  is  supposed  by  these 
defendants  that  there  were  acquired  by  them  certain  added 
powers  aud  faculties,  and  choice  in  respect  of  their  route,  and 
of  their  structure  and  its  operation  which  were  not  included 
in  the  statute  by  which  they  were  incorporated,  and  that  be- 
tween the  upper  and  the  nether  millstone  of  a  special  act  of 
incorporation  passed  before  the  amended  Constitution  pro- 
hibited such  legislation,  and  the  subsequent  Act  of  1875  which 


7 


they  claim  to  be  general,  lodging  in  the  commissioners  power 
to  modify  and  repeal  and  reform  that  special  act  of  incorpor- 
ation, between  the  upper  and  nether  millstone  of  these  co- 
operative legislations — the  Constitution,  and  the  rights  and  in- 
terests ;  that  this  clause  of  it  was  framed  in  the  presence  of  a 
great  and  immediate  danger  of  these  rights  to  protect  are  to 
be  ground  to  powder. 

I  will  ask  that  a  copy  that  we  have  had  printed  of  the  Gil- 
bert Elevated  Railroad  Act,  with  the"  various  amendments, 
shall  be  handed  to  his  Honor.  This  was  passed  in  1872,  and 
we  have  printed  the  original  act,  and  all  the  amendments  and 
extensions  of  time  or  authority  since. 

This  is  a  corporation  created  by  a  special  act.  The  title 
of  it  is  "  An  Act  to  incorporate  the  Gilbert  Elevated  Railway 
Company,  and  to  provide  a  feasible,  safe  and  speedy  system 
of  rapid  transit  through  the  city  of  New  York."  The  third 
section  expressly  defines  the  authority  and  powers  conferred. 
Certain  authority  under  the  general  Railroad  Act  of  1850  is 
conferred  upon  this  corporation,  and  the  special  authority  then 
proceeds  :  "  And  the  said  corporation  is  hereby  authorized  and 
empowered  to  make,  construct  and  maintain  an  elevated  railway, 
to  be  operated  by  the  plan  known  as  the  1  Gilbert  Improved 
Elevated  Railway,'  over,  through  and  along  streets,  avenues, 
thoroughfares  and  places  in  and  of  the  said  city  of  New  York, 
and  to  construct,  maintain  and  operate  the  said  tubular  ways 
and  railways  by  atmospheric  power,  compressed  air  or  other 
power,  together  with  the  necessary  sidings,  stations,  switches, 
turnouts,  platforms,  stairways,  elevators,  air  reservoirs,  and 
connecting  tubes  for  the  transmission  of  power,  telegraph  and 
signal  devices,  and  other  appliances  requisite  to  convey  pas- 
sengers, mails  and  merchandise  as  contemplated  by  this  act, 
and  in  the  said  system  of  railways  over  the  streets,  roads, 
squares  and  avenues  herein  mentioned." 

Commissioners  are  to  be  appointed  to  determine  what  route 
in  the  city  may  be  accessible  to  this  company  for  the  purpose 
of  its  construction  and  its  operation,  and  then  the  provisions 
in  the  fourth  section  show  a  complete  adherence  to  the  re- 
strictions of  the  third.  "  For  the  purpose  of  making,  con- 
structing and  operating  said  tubular  ways  and  railways,  said 
corporation  is  hereby  empowered  to  enter  upon  and  across  the 
several  streets,  squares  and  avenues  and  land  herein  provided 
for." 


8 


It  is  a  limit  of  their  power  to  commence  and  enter  upon  the 
locus  in  quo  for  the  purpose  of  their  corporate  powers. 

"  Such  railways  to  be  constructed  in  the  most  thorough  and 
artistic  manner,  and  of  sufficient  dimensions  for  the  purposes 
of  said  tubular  ways  and  railways,  and  at  such  heights  above 
the  streets,  squares  and  avenues  so  designated  and  established 
as  will,  when  completed,  insure  the  unimpeded  traffic  and  travel 
in  the  same." 

Whatever  power  this  corporation  took  was  a  power  limited 
by  the  requirements  that  it  should  not  interfere  at  all  with 
existing  rights  of  traffic  and  travel. 

"  The  said  tubular  ways  and  railways  the  said  corporation 
is  hereby  authorized  and  empowered  to  construct,  maintain 
and  operate  shall  be  substantially  supported  above  the  middle 
of  the  streets  and  avenues  by  iron  arches,  which  shall  span  the 
same  from  curb  to  curb,  the  bases  of  which  shall  not,  when 
practicable,  be  more  than  sixty  feet  apart,  nor  the  arches  less 
than  fifty  feet  from  each  other." 

There  is  in  the  statute  a  requirement  that  their  structure 
must  be  of  such  a  kind  as  will  not  take  away  an  inch  from  the 
traffic  way  of  the  streets,  nor  disturb  by  noise  or  jar,  or  other- 
wise, the  uses  of  the  streets  for  general  and  common  traffic  ; 
but  not  satisfied  with  that  restriction  which  the  courts  of 
justice  might  well  have  been  left  to  protect  to  the  full  extent  of 
the  public  interests,  as  applied  to  their  adjudication,  if  it  had 
been  left  thus,  the  statute  proceeds  to  say  that  these  condi- 
tions of  non-interference  shall  be  preserved. 

"Shall  be  substantially  supported  above  the  middle  of  the 
streets  and  avenues  by  iron  arches,  which  shall  span  the  same 
from  curb  to  curb,  the  bases  of  which  shall  not,  when  practi- 
cable, be  more  than  sixty  feet  apart,  nor  the  arches  less  than 
fifty  feet  from  each  other." 

That  is  to  say,  whenever  it  would  be  practicable  for 
the  purpose  of  the  public  convenience,  in  the  judgment  of 
these  commissioners,  to  use  public  streets  that  were  more 
than  sixty  or  only  sixty  feet  between  curb  and  curb,  that 
practicability,  limiting  the  arches  to  sixty  feet,  should  be, 
as  an  element  of  choice,  preferred  by  the  commissioners 
and  that  route  selected ;  and  it  happens  to  be,  either  by 
casualty  or  good  fortune  (and  no  doubt  that  operated  in 
the  minds  of  the  commissioners),  that  the  Sixth  avenue  is 
precisely  sixty  feet  from  curb  to  curb;  that  other  avenues  may 


9 


be  wider,  and  might  have  been,  but  for  that  greater  width,  as 
suitable,  perhaps  more  suitable,  for  the  route  of  the  road  ;  but 
this  statute  kept  them  within  such  limits  as  that  it  must  be  at 
least  sixty  feet,  and  for  considerations  with  regard  to  the  ex- 
pense and  strength.  Sixty  feet  being  regarded,  the  other  con- 
dition from  curb  to  curb  "would  not  be  insisted  upon,  which  ad- 
mitted of  from  curb  to  curb,  and  sixty  feet  concurring  in  the 
dimensions. 

Now,  as  to  the  lengthwise  separations.  If  it  be  pleaded  that 
this  limitation  in  regard  to  the  sixty  feet  has  no  reference  to 
the  dimensions  across  the  streets,  but  that  it  has  reference  only 
to  the  lengthwise  separations  of  the  arches  and  the  bases,  then 
we  have  nothing  bat  the  requirements  of  from  curb  to  curb, 
and  for  all  purposes  here — and  I  have  only  alluded  to  these 
matters  of  sixty  feet  in  order  to  show  that  this  avenue  did  con- 
cur with  this  arrangement — then  you  have  the  requirement 
as  to  the  proximity  with  which  these  crosswise  partitions,  so 
to  speak,  shall  be  allowed,  and  that  is  that  the  extension  of  the 
loases  of  the  supports  shall  not  be  more  than  sixty  feet  apart? 
nor  the  arches  less  than  fifty  feet  from  each  other.  The  limit- 
ations from  curb  to  curb  apply  within  the  sixty  feet,  and  then 
the  limitations  as  to  the  lengthwise  arrangement  that  these 
supports  are  to  be  not  more  than  sixty  feet  when  practicable, 
nor  the  arches  less  than  fifty  feet  from  each  other.  That 
means  the  arches  in  the  clear,  I  suppose. 

Now,  whether  an  equal  and  definite  attention  to  the  degree 
of  even  conjectural  and  dubitable  interference  with  the  traffic 
and  travel  of  the  avenue  or  streets  should  be  possible  under 
this  act,  separating  it  irorn  judicial  discretion  to  that  extent, 
requires  an  observation  oi  this  measure  of  remoteness  and  in- 
frequency  between  the  arches.  Although  there  could  be  no 
bases,  no  supports,  except  what  were  in  the  line  of  the  curbs, 
yet  even  they  were  not  allowed  to  be  more  frequent  than  the 
interval  of  fifty  feet  between  them. 

Now,  the  fifth  section  gives  to  the  corporation  the  right  of 
acquiring  property  to  "  enable  it  to  construct,  maintain  and 
operate  the  said  tubular  ways  and  railways,  and  the  motive 
power  thereof." 

The  sixth  makes  it  a  railroad  exclusively  for  the  uses  of  the 
corporation ;  excludes  everybody  other  than  public  officers 
from  going  upon  it  at  all  in  other  connection,  of  course,  than 
with  the  approbation  and  for  the  purposes  of  the  corporation 


10 


and  with  their  consent.  "  The  municipal  authorities  of  the 
city  of  Xew  York  are  hereby  prohibited  from  giving  any  per- 
mission to  any  other  person,  body,  or  corporation,  to  do  any 
of  the  acts  or  things  hereby  authorized,  but  shall  at  all  times, 
as  far  as  practicable,  aid  the  said  corporation  in  carrying  out 
the  provisions  of  this  act." 

The  time  limited  for  the  execution  of  this  work  authorized 
is  fixed  by  this  statute,  and  the  subsequent  acts  seemed  to  my 
observation  to  be  entirely  confined  either  to  questions  of  right 
or  the  extension  of  time  for  the  performance  of  the  work. 

Xow,  if  your  Honor  will  look  at  Schedule  A,  which  follows 
the  bill,  you  will  see  the  railroad  known  as  Gilbert's  proposed 
City  Elevated  Railway,  and  which  is  referred  to — I  don't  mean 
this  picture — but  which  is  referred  to.  This  Gilbert  proposed 
Elevated  Railway  is  referred  to  distinctly  in  the  act  as  a 
known  and  fixed  plan  and  method,  and  at  all  events  for  which 
alone  authority  was  asked  from  the  Legislature  ;  for  which 
alone  authority  was  given  by  them  in  respect  of  this  structure 
and  its  motive  power,  and  which  included  in  its  provisions,  in 
observing  the  public  and  local  interests  of  the  avenue,  those 
conditions  of  absence  of  noise  and  absence  of  exposure  of 
private  residences  to  the  gaze  of  passengers,  which  to  every 
one's  observation  constituted  a  primary  element  in  determining 
whether  or  no  such  a  use  or  employment  of  any  of  the  avenues 
of  this  city  can  possibly  be  permitted  by  the  Legislature. 

The  bill  shows  this  was  the  method,  and  the  published 
method,  and  the  understood  method,  that  was  covered  by  the 
brief  phrases  of  law  which  adopted  it  as  a  measure,  and  the 
limit  and  description  and  the  kind  of  road  for  construction 
and  operation  which  was  to  be  tolerated,  compatible  with  the 
interests  of  the  public  and  the  city,  and  the  provisions  of  the 
law  show  that. 

Xow,  some  question  may  be  made,  for  aught  I  know,  in  the 
trial,  as  was  indicated  in  some  of  the  affidavits,  as  to  whether 
or  no  this  was  not  a  plan,  a  model,  or  publication  made  for 
effect  in  this  suit,  and  whether  it  was  or  not  an  adoption  of  an 
earlier  and  different  method,  contrived  and  not  insisted  upon 
and  not  proposed  by  the  Legislature,  and  not  acted  upon  by 
them,  and  not  described  by  the  language  of  the  law. 

Now,  1  hold  in  my  hand  a  sheet  taken  from  the  issue  of  the 
Scientific  American  of  April  13th,  1872.  This  bill  was  intro- 
duced in  the  Legislature  on  the  17th  of  March,  1372,  and  was 


11 

passed  on  the  17th  of  June  ;  and  here  on  the  13th  of  April 
we  have  the  actual  publication,  presentation  of  the  public  in- 
terests to  be  looked  at  by  the  citizens,  to  be  judged  of  by  the 
Legislature,  in  order  that  it  might  be  known  and  understood 
what  kind  of  a  structure  it  was  that  was  sought  to  be  author- 
ized ;  that  was  described  as  the  plan  of  Gilbert ;  that  citizens, 
either  in  general  as  property  holders,  and  having  the  use  of 
the  streets  at  their  service,  or  abutting  proprietors  upon  the 
projected  line,  could  attend  to,  and  be  opposed  to  it  if  they 
thought  best.  It  is  there  described  as  "  Gilbert's  proposed 
City  .Elevated  Railway,"  precisely  what  our  reproduction  of 
it  describes  in  this  Schedule  "  A  "  to  the  bill,  and  this  is  the 
introduction  of  it  to  the  public  in  this  Scientific  American  news- 
paper : 

"  Among  the  recent  projects  for  rapid  transit  in  New  York 
is  that  of  Mr.  R.  H.  Gilbert  for  an  elevated  railway,  on  the 
plan  so  tastefully  represented  in  the  accompanying  engraving. 

The  plan  is  to  place  along  the  street,  at  distances  of  from 
fifty  to  one  hundred  feet,  compound  gothic  iron  arches,  which 
shall  span  the  street  from  curb  to  curb,  at  such  an  elevation  as 
shall  not  interfere  with  the  ordinary  uses  of  the  street.  On 
these  arches,  a  double  line  of  atmospheric  tubes,  eight  or  nine 
feet  in  diameter  are  to  be  secured.  The  arches  are  strongly 
connected  with  each  other  by  means  of  a  vertical,  latticed  or 
trussed  girder  running  between  the  tubular  ways,  which  are  to 
be  firmly  joined  to  it  on  either  side  by  ties  of  suitable  con- 
struction. Through  the  tubes,  supported  as  described,  cars 
carrying  passengers  are  to  be  propelled  by  atmospheric  power. 
There  is  also  provision  in  the  same  set  of  arches  for  two  or 
more  sets  of  tubes  for  the  transportation  of  mail  and  packages. 
The  stations  will  be  situated  at  distances  of  about  one  mile 
apart  along  the  line,  and  will  be  provided  with  pneumatic 
elevators  to  raise  passengers  to  and  from  the  place  of  transit 
with  perfect  safety,  thus  obviating  the  necessity  of  going  up 
and  down  stairs  for  transit. 

The  movement  of  the  cars  or  trains  along  the  line,  as  well 
as  their  arrival  and  departure  from  stations,  is  made  known  at 
all  points  by  a  telegraphic  device,  which  is  automatically  ope- 
rated by  the  cars  in  passing. 

A  bill  is  now  before  the  New  York  Legislature  to  authorize 
the  construction  of  this  work,  which,  it  is  alleged,  can  be  eco- 
nomically and  expeditiously  executed. 


12 


The  bill  has  been  favorably  considered  and  reported  by  the 
Senate  Committee,  and  meets  with  no  opposition  except  on  the 
part  of  the  property  owners  and  occupants  of  buildings  on  the 
streets  which  are  intended  to  be  occupied  b}T  the  works.  These 
people  object  to  the  erection  of  this  ornamental  structure  or 
big  bridge,  as  they  term  it,  in  front  of  their  doors,  and  claim 
that  the  presence  of  the  tubes  would  be  equivalent  to  the  roof- 
ing over  the  street. 

They  will  consent  to  nothing  that  cuts  off  their  light  and 
air. 

Everybody  in  New  York  wants  rapid  transit,  but,  strange  to 
say,  the  moment  that  anybody  sets  to  work  with  a  definite  plan 
for  its  realization,  they  are  vigorously  opposed  and  the  work 
prevented.' ' 

Now,  it  will  be  a  matter  of  proof  that  this  was  the  plan,  this 
the  subject,  this  the  model,  this  the  pretension,  and  this 
scientific  and  intelligent  exposition  of  the.  limit  of  its  inter- 
ference with  private  property,  that  touched  nothing  but  light 
and  air,  and  did  not  interfere  with  traffic,  and  had  no  terrors 
of  noise  or  rattle  of  steam,  but  was  to  be  the  silent  transfer,  as 
by  the  magic  of  a  pneumatic  power  through  these  air-tight 
cylinders,  obstructing  only  light  and  air. 

Now,  as  the  method  upon  which  the  corporation  has  entered 
upon  the  streets  and  was  proceeding  to  lay  the  foundation  and 
build  the  superstructure  is  wholly  discordant  both  with  respect 
to  the  limitation  "  from  curb  to  curb,"  separation  longitudi- 
nally of  its  posts  and  partitions,  openness  of  their  enginery, 
and  the  adoption  of  the  steam  motive  power,  with  all  the  force, 
and  so  with  all  the  terrors  and  the  dangers  that  belong  to  that 
agency  in  a  crowded  city,  your  Honor  sees  at  once  that  there 
must  be  some  other  power  and  authority  to  justify  what  is 
proposed  to  be  done,  commenced  to  be  done,  admitted  to  be 
proposed  to  be  done,  and  admitted  to  be  commenced  to  be 
done  by  this  corporation. 

Intermediate  between  the  passage  of  these  acts  relating  to 
the  Gilbert  Elevated  Railroad,  and  the  passage  of  the  act  of 
1875,  an  amendment  of  the  Constitution  took  place,  in  which 
the  fundamental  and  paramount  law  of  the  State  undertook  to 
deal  with  the  subject  of  railroads  in  the  street.  Among  the 
subjects  of  legislation  prohibited  to  the  Legislature,  except  in 
public  laws,  the  18th  section  includes  this  "  granting  to  any 
corporation,  association  or  individual,  the  right  to  lay  down 


13 


railroad  tracks ;  granting  to  any  corporation,  association  or 
individual,  any  exclusive  privilege,  immunity  or  franchise 
whatever,"  and  then  this  injunction:  "the  Legislature  shall 
pass  general  laws  providing  for  cases  enumerated  in  this  sec- 
tion, and  for  all  other  cases  which,  in  its  judgment,  may  be 
provided  for  by  general  laws." 

There  was  then  operating,  by  these  two  clauses  of  prohib- 
ition and  authority,  a  confinement  of  the  legislative  power  to 
deal  with  the  subject  of  railroad  tracks  of  any  kind,  only  by 
general  legislation ;  and  if  it  stood  only  there,  I  should,  with- 
out fear  of  your  Honor's  dissent  on  examination  and  reflection, 
challenge  this  law  as  a  violation  of  this  clause  of  the  Constitu- 
tion in  the  passage  of  a  private  railroad  law  ;  if  not  a  passage 
of  a  private  law  by  the  Legislature  in  terms,  yet  on  its  face  not 
a  general  railroad  law,  and  in  its  terms  failing  to  be  expressly 
and  distinctly  private  legislation  only  by  making  a  private 
legislative  function  and  service  to  be  performed  by  a  commis- 
sion wholly  intolerable  to  the  constitutional  power  of  the 
Legislature  outside  of  this  question  of  restriction.  But  the 
clause  of  the  Constitution  proceeds  with  greater  explicitness, 
and  in  a  manner  that  no  one  can  fail  to  understand  :  "  but  no  laiv, 
private  or  public,  local  or  general,  shall  authorize  the  construc- 
tion or  creation  of  a  street  railroad  except  upon  the  condition 
that  the  consent  of  the  owners  of  one-half  the  value  of  the  property 
bounded  upon,  and  the  consent  also  of  the  local  authorities 
having  the  control  of  that  portion  of  the  street  or  highway  on 
which  it  is  proposed  to  construct  or  to  build  such  railroad,  be 
first  obtained  ;  or  in  case  the  consent  of  such  property  owners 
cannot  be  obtained,  the  General  Term  of  the  Supreme  Court 
in  the  district  in  which  it  is  proposed  to  be  constructed  may, 
upon  application,  appoint  three  commissioners,  who  shall  de- 
termine, after  hearing  all  parties  interested,  whether  such  rail- 
way ought  to  be  constructed,  and  their  determination  may  be 
taken  in  lieu  of  the  consent  of  the  property  owners." 

All  this  operation  of  a  quasi  judicial  court,  your  Honor  ob- 
serves, is  limited  entirely  to  the  mayor  and  aldermen,  unk  >s 
the  consent  of  the  property  owners  being  withheld,  the  Su- 
preme Court  shall,  in  its  judgment,  appoint  commissioners  to 
be  substituted  in  lieu  of  and  for  that  failing  requirement. 

At  present  I  am  only  to  ask  your  Honor's  attention  to  the 
kind  of  structure  which  is  sought  to  be  authorized  under  the 
Act  of  1875,  and  I  do  not  at  present  call  attention  to  any  of 


11 


the  legal  provisions  of  the  act  as  questionable  in  a  constitution- 
al point  of  view,  or  in  respect  to  the  construction  that  is  to  be 
put  upon  them  if  they  are  valid,  but  only  to  the  contrivance  of 
the  road,  as  alleged  in  the  bill  and  admitted  in  the  answer,  that 
this  Gilbert  Elevated  Railroad  Company  is  expected  to  con- 
str  uct. 

In  the  7th  article  of  the  bill  is  the  allegation,  which  is  ad- 
mitted in  the  answer,  that  they  have  "  undertaken  and  intend, 
unless  prevented  from  doing  so,  to  construct  and  operate,  along 
said  Sixth  avenue,  between  Amity  street  and  Fifty-ninth  street, 
directly  over  that  part  of  the  plaintiffs  railroad  which  runs 
along  said  avenue  between  those  streets,  an  ordinary  elevated 
railroad,  to  be  worked  by  means  of  steam  locomotive  engines 
instead  of  an  application  of  atmospheric  power,  and  to  be  sup- 
ported on  straight  transverse  girders  instead  of  arched  ones  rest- 
ing on  iron  columns,  which,  instead  of  being  placed  at  the  curb- 
stones of  said  avenue,  and  not  less  than  fifty  feet  apart,  longi- 
tudinally, are  to  be  set  in  the  roadway  of  the  said  avenue  close 
along  and  on  each  side  of  the  plaintiff's  said  railroad,  about 
twent}^-one  feet  apart  transversely,  and  about  thirty-five  feet 
apart  longitudinally,  and  which  girders,  instead  of  spanning  the 
said  avenue  from  curb  to  curb,  are  to  span  only  the  plaintiff's 
said  railroad  ;  and  which  elevated  railroad,  that  the  said  de- 
fendants have  so  undertaken  and  intend  to  construct  and  oper- 
ate as  aforesaid,  instead  of  being  from  thirty  to  forty  feet 
above  the  level  of  the  said  avenue  and  enclosed  in  iron  tubes, 
which  conceal  from  sight  the  movement  of  cars  upon  the  same 
and  the  action  of  its  motive  power,  is  to  be  only  from  twelve  to 
fourteen  feet  above  the  level  of  the  said  avenue,  and  is  to  be  so 
constructed  that  the  movement  of  its  cars  and  the  action  of  its 
locomotives  are  to  be  plainly  in  sight  from  each  side  of  the  said 
avenue  and  from  the  plaintiff's  railroad  tracks ;  and  for  the 
purpose  of  constructing  such  a  kind  of  elevated  railroad  as  the 
defendants  have  so  undertaken  and  intend  to  construct  and 
operate  as  aforesaid,  instead  of  such  tubular  railway,  they  have 
unlawfully  entered  upon  the  said  Sixth  avenue  at  different 
points,"  etc. — they  have  entered  upon  the  street,  and  are  pro- 
ceeding upon  the  street. 

Now,  the  8th  section  sets  out  the  injury  to  the  buildings,  and 
the  9th  the  mode  and  form  of  injury  and  interference,  both  in 
the  general  and  in  the  special  interests  of  this  track,  and  of  the 
plaintiff  as  proprietor  of  a  considerable  area  of  property  abut- 


15 


ting  upon  the  avenue,  which  this  method  of  construction  intro- 
duces, and  which  could  not  operate,  would  not  operate,  under 
the  method  authorized  by  the  Gilbert  Act. 

To  the  eye  it  is  very  apparent  how  great  a  change  in  the 
public  and  general  use  of  this  avenue  will  be  made  by  this 
structure.  If  it  be  lawful,  and  by  paramount  authority,  then 
like  any  other  despotic  legislation  that  crushes  private  inter- 
ests, destroys  private  property,  it  has  its  course,  like  the  car  of 
Juggernaut,  over  the  prostrate  rights  and  the  liberties  of  the 
people. 

I  am  now  only  considering  what,  indisputably,  are  the  inter- 
ferences which  this  structure  will  produce  with  regard  to  the 
common  interests  of  the  public  use  of  the  streets,  and  with 
regard  to  the  direct  corporate  rights  and  interests  of  these 
plaintiffs'  corporation,  and  the  abutting  proprietors.  See  how 
carefully  the  Legislature,  when  it  had  power,  within  the  func- 
tions of  legislation  and  the  observance  of  the  general  guaranties 
of  property  by  the  forms  of  the  Constitution,  to  authorize  an 
elevated  railroad — see  how  carefully  it  proceeded  ;  how  it  lim- 
ited the  possibility  of  the  structure,  and  the  motive  power  from 
being  extended  by  construction,  and  how,  besides  the  definite 
geometrical  restrictions  in  measure  that  it  gave,  it  gave  the 
further  restriction  that  it  should  not  interfere  at  all  with  pri- 
vate traffic  and  general  use.  Whether  or  no  this  be  a  useful 
structure  which  induces  and  justifies  the  destruction  of  this 
avenue  as  a  public  street  of  this  city,  which  destroys  its  sur- 
face as  a  line  upon  which  houses  and  stores  are  to  be  built  and 
occupied,  that  it  makes  the  running  of  this  road  of  these  plain- 
tiffs compatibly  with  their  just  emoluments  and  with  the  public 
service  which  should  be  performed,  there  can  be  no  doubt. 

Your  Honor  sees  at  once  upon  this  model,  which  is  accurate, 
precisely  what  the  form  and  nature  of  this  use  of  this  avenue, 
as  compared  with  its  existing  uses,  and  with  what  are  famil- 
iar to  us  in  all  our  experience  and  what  a  change  in  the  nature 
of  things  from  what  a  public  street  is,  "  and  of  right  ought  to 
be,"  by  this  invention,  this  corporation  with  its  pretentions 
will  effect.  Here  is  a  street  that  the  demands  of  travel  re- 
quired should  be  sixty  feet  wide  in  its  carriage-way,  and  the 
sidewalks  unimpeded,  and  never  has  anybody  suggested  that 
the  constantly  swelling  tide  of  traffic  and  travel  built  up  in 
faith  upon  the  permanent  security  and  the  adequacy  of  this 
avenue  for  the  increasing  tide  of  its  business  should  call  for  or 


16 


tolerate  any  reduction  of  it  :  and  yet  by  this  structure  confess- 
edly posts  only  twenty-two  feet  apart  in  this  way  and  only 
thirty-five  feet  apart  in  (hat  way,  are  to  be  concentrated  upon 
this  open  passage-way  of  the  street.  Thus,  lengthwise,  this 
avenue  is  to  be  divided  into  three  narrow  lanes,  one  of  which, 
occupied  by  our  railroad  track  upon  the  surface,  is  to  be  twenty- 
three  feet  wide  and  at  the  sides  there  are  to  be  lanes  each 
seventeen  feet  wide,  and  then  for  the  purpose  of  transverse 
passage  over  this  track  of  ours  kept  by  us  if  the  service  is  to 
be  continued  for  public  needs  and  our  private  rights  to  be  by 
possibility  accommodated  to  this  intrusion,  there  are,  as  it  were 
posts  or  partitions,  numerous,  frequent,  near  one  another,  sep- 
arated only  by  thirty-five  feet.  In  each  block  between  the 
streets  there  will  be  six  pairs  of  these  posts,  making  six  com- 
partments in  the  street  as  well  as  its  division  into  lanes.  No 
reasoning,  no  imagination  can  get  rid  of  the  principal  and  con- 
clusive fact  these  intrusions  upon  the  roadway  of  the  public 
street  are  interferences  with  it  as  a  public  street.  That  it  is 
no  longer  the  street  that  it  was  before  ;  that  it  is  incapable  of 
the  uses  that  it  was  capable  of  before,  and  that  if  the  structure 
had  been  allowed  under  a  claim  of  right  without  authority  of 
law,  or  if  they  had  been  authorized  by  law  as  mere  interfer- 
ences with  the  use  of  the  street  as  it  had  heretofore  been  used, 
the  efficient,  the  permanent  and  the  constant  consequences 
would  have  been  that  the  street  would  be  no  longer  a  public 
street  of  its  dimensions. 

For  the  purposes  of  this  interference  I  now  only  talk  of  the 
elevation  of  these  posts,  supposing  that  there  was  no  structure 
over  them,  no  railway  to  be  put  over  them.  That  would  be  in- 
finitely less  interference  with  the  public  street  than  they  are 
when  they  are  completed  in  their  design  by  the  superstructure 
and  the  attendant  use.  But  if  the  posts  had  been  there,  and 
that  alone  realized,  is  there  any  doubt  that  any  person  injured 
by  them,  if  they  were  put  there  without  authority  of  law,  would 
have  had  the  summary  remedy  of  leveling  them  to  the  ground 
and  a  direct  personal  action  against  whoever  was  responsible  for 
putting  them  there  and  against  the  city  of  New  York,  that,  know- 
ing of  their  existence,  permitted  them  to  stand,  obstructions 
to  the  common  way? 

Is  not  that  the  law  of  the  highway  ?  Is  not  that  the  law  of 
the  public  streets  ?  A.nd  does  it  need  any  confirmation  of  the 
necessary,  of  the  universally  approved  personal  right  to  overthrow 


17 


the  structure  and  to  obtain  damages  for  the  injuries  that  may 
have  occurred  from  its  presence  ?  The  importance  of  this  sug- 
gestion will  appear  to  your  Honor  when  you  come  to  consider, 
in  the  progress  of  the  case  if  not  now,  some  of  the  objections 
that  are  made  to  the  redress  of  all  these  mischiefs,  if  they  be 
mischiefs,  by  the  authority  of  the  court. 

Before  undertaking  to  point  out  the  operation  of  this  final 
structure  and  its  employment  as  an  infringement  of  the  ces- 
sion of  the  street  and  its  rights  to  the  inhabitant,  I  want  to  di- 
rect your  Honor's  attention  to  what  must  be  now  considered, 
to  wit,  the  necessary  attendants  in  regard  to  the  motive  power, 
the  length  and  frequency  of  trains,  the  speed,  the  immediate 
start  and  immediate  arrest  of  this  train,  to  answer  the  needs  of 
rapid  transit. 

Everybody  is  in  favor,  of  course,  of  rapid  transit.  Nothing 
would  be  more  satisfactory  than  that  perfect  system  of  rapid 
transit  which  modern  civilization  has  never  been  able  to  obtain, 
to  wit,  the  opening  of  a  carpet,  seating  one's  self  upon  it  and 
wishing  to  be  transferred  to  Mecca,  or  perhaps  somewhere 
else.  That  is  the  rapid  transit  of  imagination  and  of  news- 
paper discussions.  Everybody  is  in  favor  of  rapid  transit. 
The  annihilation  of  time  and  space  is  necessarily  popular 
compared  with  the  slow  impediments  and  vexations  of  any 
present  actual  use.  But  when  the  efforts  and  attendants  of 
rapid  transit  are  compared  with  this  brilliant  imagination, 
of  course  the  railroad  is  nowhere  in  comparison.  But  the 
problem  of  rapid  transit  cannot  be  answered  by  mere  tables  and 
schemes,  by  mere  contracts  for  structure  and  promises  for 
the  making  of  motive  power. 

The  inexorable  condition  of  rapid  transit,  then,  through  a 
crowded  city,  in  order  to  meet  public  expectation  and  justify 
the  intervention  of  the  State  by  its  paramount  power,  are  to  be 
taken  into  account  in  the  consideration  of  this  scheme.  The 
apparatus  which  is  now  sensibly  before  your  Honor's  eye  repre- 
sents the  general  nature  and  the  form  of  this  structure.  Let  us 
see  what  the  motive  power  must  be  expected  to  accomplish  if 
it  meets  the  requirements  of  the  transfer  of  our  population  that 
is  expected  from  it.  It  is  not  a  train  that  is  to  run  without 
stopping  from  the  city  of  New  York  to  some  terminus  beyond  the 
city.  It  is  not  to  have  by  any  possibility  the  methods  and  the 
trial,  or  the  standard  of  success,  that  belongs,  for  instance,  to 
the  wonderful  effort  and  the  completed  effort  by  which  a  tran- 
2 


IS 


sit  across  the  continent  is  effected  from  New  York  to  San  Fran- 
cisco, at  near  fifty  miles  an  hour,  by  which,  with  infrequent 
stoppages,  this  immense  span  of  the  continent  in  three  days 
and  a  half  is  effected.  The  conditions  are  very  frequent  trains, 
very  capacious  trains,  very  powerful  engines,  the  most  power- 
ful that  the  experience  of  the  manufacture  and  use  of  this 
motive  power  has  ever  produced ;  frequent  stoppages,  which 
involve,  of  course,  great  capacity  of  suddenly  attaining  a  con- 
siderable speed,  and  suddenly  retarding  it  for  the  safety  of  the 
stoppage,  and  that  shall  induce  a  general  rate  of  travel.  These 
hindrances  and  interruptions  are  to  be  considered  in  regard  to 
the  rapid  movement  of  the  trains.  Now.  these  inexorable  con- 
ditions by  which  rapid  transit  (not  merely  as  an  experiment, 
but  as  something  which  is  to  meet  the  actual  requirements  of 
our  population)  is  to  be  accomplished  cannot  be  avoided. 
What  do  they  require  ?  Why,  the  firmest  possible  structure, 
greatest  possible  provision  against  accidents  or  dangers,  and 
the  limitation  of  possible  accident  and  danger  thereby  incurred 
so  far  as  the  resources  and  invention  of  man  and  the  nature  of 
matter  will  permit.  The  frequency  of  trains,  and  their  weight, 
cannot  be  dispensed  with.  Why,  this  elevated  railroad  which 
has  been  now  in  operation  for  several  years  up  Greenwich 
street,  transfers,  I  am  told,  only  about  6,000  passengers  a  day, 
and  this  railroad  of  the  Sixth  avenue  company  transfers  50,000 
every  day  in  the  year,  on  an  average — 55,000  or  60,000 
per  day.  So  your  Honor  frill  see  at  once  what  an  im- 
mense reduction  of  the  imaginary  power  of  the  steam  railroad 
is  induced  by  this  requirement.  But  thai  is  slow,  that  is  feeble, 
thai  is  not  capable  of  carrying  at  great  speed  and  with  great 
power  heavy  trains  of  passengers.  It  cannot  meet  the  demands 
of  the  transfer  of  thirty  to  fifty  and  sixty  millions  of  passengers 
a  year.  But,  as  I  say,  this  rapid  transit — if  it  is  to  meet  pub- 
lic expectation  and  public  need,  must  have  some  competency 
to  perform  the  great  services  and  labor  that  is  to  be  imposed 
upon  it.  Now,  the  experience  of  steam  transit  through  the 
great  city  of  London — tried  both  by  underground  and  upon 
elevated  tracks  strongly  supported  by  mason-work,  with  heavy 
and  frequent  trains,  with  repeated  stopping,  and  carrying  in  the 
aggregate  great  numbers  of  people — is  that  they  can  be  accom- 
modated upon  suitable  structures  ;  but  they  are  structures  that 
contain  as  a  necessary  and  fundamental  basis  of  their  success, 
the  firmest  beds  and  the  absolute  exclusions  of  all  interrup- 


19 


lions.  And  I  am  told  that  the  immense  demand  of  power  in 
the  engines  has  been  such  as  would  have  been  adequately 
served  by  no  contrivance  of  a  road-bed  that  was  not  of  the 
firmest  kind,  and  that  was  not  in  the  very  rail  itself  of  the 
firmest  texture  that  it  is  in  the  power  of  the  art  of  working  iron 
to  produce  in  the  form  of  steel.  That  eugines  of  30  tons  are 
necessary  to  combine  the  immense  power  that,  on  a  sudden 
start,  shall  attain  rapid  speed,  and  then  after  a  sudden  stop 
shall  admit  of  a  resumption  of  speed  ;  and  that  the  success 
of  underground  railroads  there  is  found  in  the  firmness  of  the 
road-bed  and  its  seclusion,  and  in  the  use  and  employment  of 
these  immense  engines  that,  with  stoppages  at  intervals  of  half 
a  mile,  can  attain  an  intermediate  speed  of  30  miles  an  hour. 
They  cannot  make  up  that  average  because  the  slow  accelera- 
tion of  speed  at  the  start  reduces  it ;  but  they  must  get  some- 
where, during  some  part  of  their  course,  rapidity,  or  else  these 
conditions  of  stopping  and  starting  will  prevent  its  being  a 
rapid  transit.  Now,  we  are  not  to  take  a  road  as  an  imaginary 
road,  and  discuss,  before  your  Honor,  the  question  whether  the 
road  as  operated  for  the  purpose  of  rapid  transit  is  or  is  not 
compatible  with*  our  use  of  the  surface  track — with  the  public 
use  of  these  side  lanes,  or  with  the  occupancy  of  the  houses  on 
the  sides  of  the  street  which  will  be  affected  by  the  noise  and 
tremor  that  must  attend  the  constant  presence  of  this  pow- 
erful enginery  in  operation.  But  we  are  to  judge  of  whether 
it  is  or  it  is  not  compatible  with  the  trust  use  of  the  streets  of 
the  city  of  New  York,  as  they  are  and  have  been  and  ought 
to  be  used ;  and  the  sole  title  of  which  is  that  vested 
in  the  city.  Now,  these  cars  of  our  road  (which  are  certain- 
ly not  too  capacious  and  are  not  too  numerous  for  the 
public  need,  as  your  Honor  knows)  reach  in  their  extension 
just  about  from  one  post  to  another.  The  accurate  measure- 
ment, I  am  told,  shows  that  the  cars  are  25  feet,  and  the  horses 
are  10  feet,  which  is  35  feet.  The  cars  are  accurate  in 
dimensions ;  the  horses,  perhaps,  are  not,  and  the  frequency 
with  which  the  cars  run  both  ways  your  Honor  has  every  day 
observed.  You  can  see,  then,  how  much  this  middle  track  has 
taken  from  the  public  use,  not  by  our  use,  but  by  its  beiug  ex- 
cluded from  being  traversed  by  the  public,  except  at  right  lines 
between  these  posts.  Then  your  Honor  can  see  how  ordinary 
vehicles,  trucks,  drays  and  heavy  wagons,  with  heavy  weights 
for  their  loads,  are  to  be  impeded — unquestionably  impeded  in 


20 


crossing  this  street.  Your  Honor  will  see  how  every  cross 
street  is  divided  here  by  the  posts — necessarily  divided.  The 
requirement  of  the  structure  is  that  it  shall  be  in  the  middle  of 
each  road,  and  not  otherwise  ;  and,  then,  here  is  an  illustration 
of  what  certainly  is  a  very  important  subject  of  interest  to  the 
people  of  this  city,  not  only  to  those  that  live  on  this  avenue, 
but  that  live  in  sections  where  the  Fire  Department  needs  to 
bring  its  apparatus  rapidly  and  securely  to  their  aid.  Here  is 
a  truck  actually  and  properly  measured,  of  the  length  of  50' 
feet  (which  is  the  length  of  the  ladders  of  a  fire  company,  irre- 
spective of  the  team  of  horses),  and  if  anybody  can  contrive 
how  that  fire  apparatus  going  down  this  street  could  round  and 
go  down  that  lane,  he  is  wiser  than  the  ingenious  and  com- 
petent mathematicians  who  have  made  this  calculation.  Even 
if  the  horses  are  as  tractable  and  docile  as  our  learned  friends 
would  have  us  believe  they  are,  I  submit  to  your  Honor  that 
it  would  scarcely  be  possible  to  get  that  truck  clown  that  street 
in  that  way.  A  direct  crossing  is  impossible  ;  if  there  was  a 
fire  on  that  side  of  the  avenue  and  there  was  need  for  the  fire 
apparatus,  the  only  way  it  could  get  round  would  be  to  go 
down  to  the  Battery  and  come  up  on  the  other  side.  If  there 
was  a  fire  on  this  side  the  Fire  Department  could  get  along 
possibly,  if  the  horses  were  tractable  and  the  apparatus  was 
not  smashed  before  it  got  to  the  fire.  And  yet,  in  the  most 
soothing  manner  in  the  world,  this  structure  is  spoken  of  as 
only  an  interruption  while  it  is  being  completed,  and  that  after- 
wards all  things  will  be  as  smooth  and  easy  and  open  and  man- 
ageable and  fnjoyable  as  they  were  before  it  was  commenced. 
Now,  I  come,  if  your  Honor  please,  up  to  the  silent  and  stub- 
born interference  of  this  apparatus  with, — and — its — impres- 
sion— upon,  the  proprietary  occupation — of  the  side  of  the 
streets,  upon  the  use  of  the  streets  in  these  lanes  on  each  side, 
and  upon  the  use  of  this  horse  railroad  track  of  our  company, 
and  on  the  passage  of  carriages  and  drays,  and  all  the  manifold 
forms  of  traffic  in  this  great  community,  while  these  trains  are 
moving.  If  they  are  to  carry  the  travel  that  they  promise,  if 
they  are  to  relieve  the  distress  about  which  so  much  complaint 
is  made,  they  are  to  have  very  frequent  trains,  and  they  are  to 
have  very  heavy  trains — for  both  frequent  trains  and  heavy 
trains  must  combine  to  carry  the  mass  of  population.  If  they 
make  them  less  frequent  they  must  be  more  heavy ;  if  they 
make  them  more  heavy,  then  they  are  not  capable  of  rapid 


21 


transit,  because  there  is  not  power  enough  to  move  them  or 
power  enough  to  stop  them  ;  and,  so,  you  must  have  a  limit 
reached  both  in  respect  to  length  of  the  trains  and  to  their 
speed.  That  is  the  best  result  from  those  two  factors  for  the 
most  rapid  possible  transit  of  the  largest  number  of  people. 
Now,  if  your  Honor  please,  the  engines  that  are  to  be  capable 
of  this  immense  demand  upon  their  strength  must  have  open 
throats ;  they  must  have  smoke  and  fire  and  noise  constant  as 
ave  the  moments  of  the  day.  There  is  nothing  can  be  devised 
to  do  away  with  all  the  impressions  made  by  steam  trains  of 
-cars  going  at  great  speed  through  a  great  city.  And  when  we 
are  considering  whether  or  no  injury  is  threatened  or  injury 
is  effected,  and  so  determining  whether  it  is  within  the  use  of 
the  street  for  the  purpose  that  it  has  been  used  before,  we  are 
not  for  a  moment  to  limit  ourselves  to  this  dead  structure,  but 
to  this  structure  as  a  part  of,  and  justifiably  only  as  a_p«r£of, 
and  deemed  only  as  a  part  of,  this  most  active  and  most  con- 
stant enginery  of  motive  power.  Well,  now,  our  bill  has  suffi- 
ciently set  forth  what  is  at  once  visible  to  the  eye,  or  what  the 
least  reflection  brings  to  the  mind,  that  the  population  we  ara 
now  accommodating  by  our  cars  cannot,  with  safety  to  them- 
selves, seek  this  mode  of  transit ;  if  it  be  necessary  to  add  to  the 
present  methods — always  inadequate,  no  matter  what  additions 
shall  be  made  to  them,  for  the  transfer  of  people  up  and 
down  this  island — why  add  it  in  a  way  that  will  be  an 
addition,  and  not  necessarily  a  greater  subtraction  from 
the  present  useful  and  improved  methods  of  traffic  and 
travel.  These  cars  pass  one  another,  being  restricted 
perhaps  as  to  the  distance  between  the  tracks,  so  that 
as  a  matter  of  rule  passengers  are  not  allowed  to  get  off  from 
the  cars  when  they  stop,  on  the  side  of  the  car  next  to  the 
parallel  track,  on  account  of  the  danger  and  the  exposure. 
And  if  I  am  not  mistaken,  this  court  has  held  judicially  in  a 
case  seeking  redress  for  injury,  that  it  is  carelessness  on  the 
part  of  the  passenger  to  get  off  from  one  of  these  cars  on  the 
inner  track,  and  that  it  is  contributory  negligence  on  his  part 
that  prevents  a  recovery  for  injury  from  the  collision  or 
wounds  that  attend  his  experiment.  Now,  if  it  is  said  that 
we  should  not  complain  of  haviug  posts  set  on  the  outside  of 
our  track  that  will  make  necessarily  the  same  danger  on  the  out- 
side of  our  track  that  exists  on  the  inside  because  we  have  that 
danger  on  the  inside,  and  therefore  it  is  no  harm  for  us  to 


22 


have  it  on  the  outside  also.  Well,  that  would  be  like  saying- 
that  if  the  occupant  of  a  house  ran  the  risk  of  breaking  his 
neck  by  means  of  his  back-door,  and  had  been  obliged  to  close 
it  up,  that  therefore  he  ought  not  to  object  to  having  a  pitfall 
dug  in  front  of  his  front  door,  because  he  was  always  exposed 
to  the  danger  at  the  other  escape.  It  is  because  of  the  nec- 
essary limitation  in  our  occupation  of  this  street  that  brings 
onr  tracks  so  near  together  and  that  makes  it  dangerous  by 
the  regular  passage  of  our  cars,  to  use  that  mode  of  exit  from 
the  cars,  that  this  obstruction,  creating  the  same  and  greater 
danger  on  this  side  of  our  track,  becomes  absolutely  intoler- 
able. It  is  closing  up  the  use  of  our  mode  of  traffic  in  pas- 
sengers, both  for  our  own  emolument  and  for  the  public  use, 
by  such  a  constriction  of  circumstances  as  makes  it  dangerous 
of  necessity.  Now,  that  being  so,  you  see  at  once  that  the 
occupation  of  the  sides  of  this  street,  for  the  purposes  which 
require  the  resort  of  customers  for  trade  and  of  the  enjoyment 
of  domestic  homes,  is  all  gone  the  moment  that  this  enginery 
is  set  at  work.  But,  when  I  call  your  Honor's  attention  to 
the  other  requirement  of  rapid  transit,  to  wit,  reasonable  safety, 
you  will  see  that  it  is  utterly  incompatible  with  this  structure. 
Why,  if  your  Honor  please,  no  structure  is  firm  that  h  not 
supported  by  the  solid  earth,  and  no  structure  that  is  not  sup- 
ported by  the  solid  earth  and  resting  upon  it,  is  at  all  com- 
patible with  the  use  of  a  powerful  enginery  and  the  jar  of 
constant  traffic.  They  say  there  is  a  condition  for  the  test 
and  for  the  measurement  somewhere  of  the  supporting  power 
of  this  track,  which  is  to  be  2,000  pounds  to  the  foot.  But, 
what  is  the  supporting  power  of  the  structure  if  the  immense 
weight  is  enhanced  by  the  constant  momentum  of  the  rapid 
hammering  of  the  engine?  How  can  these  structures  exist ? 
I  speak  now  not  so  definitely  of  the  dangers  to  those  that  use 
them,  but  of  the  danger  to  the  people  of  the  city  in  the  midst 
of  whom  they  are  used  :  and  the  danger  to  our  cars  :  and  the 
danger  to  our  horses  :  and  the  danger  to  the  traffic  in  these 
narrow  lanes  and  on  these  sidewalks  :  and  of  the  danger  to 
these  buildings.  Who  is  to  give  a  guaranty  against  the 
danger  that  is  liable  to  arise  from  railroad  traffic  under 
circumstances  that  make  it  impossible  to  observe  the  precau- 
tions and  moderations  that  always  attend  a  temporary  use  of 
the  trestle  work  on  a  railroad  ?  Why,  neither  your  Honor,  nor 
any  of  the  rest  of  us,  has  ever  traveled  upon  a  steam  railroad 


k23 


having,  as  a  part  of  its  structure,  a  trestle,  that  he  did  Lot  find 
that  the  engine  in  approaching  the  trestle  work  slackened  its 
speed,  for  the  hammering  of  the  engine  would  destroy  the 
framework  over  which  it  passed.  And  there  never  is  a 
moment  from  the  time  the  passenger-car  reaches  the  trestle 
work  until  it  leaves  it,  that  every  passenger  does  not  consider 
it  a  temporary  danger,  tolerable  and  tolerated  only  because  it 
is  temporary,  and  only  because  those  precautions  are  taken 
that  makes  even  an  imagination  of  security  possible.  And, 
are  they  to  adopt  that  system  ?  Are  they  to  go  slow  and  sure 
and  quiet  over  this  trestle  work  ?  Why,  then  they  lag  behind 
the  street  cars  oeneath  them  :  and  rapid  transit  turns  into  as 
great  a  caricature  of  what  the  public  imagination  has  affixed 
to  its  premises,  as  Dr.  Franklin's  description  of  a  sleigh  ride. 
A  nearer  illustration  of  the  power  and  service  to  be  expected 
lrom  a  steam  railroad,  to  accomplish  such  a  rapid  transit 
through  the  city,  than  any  other,  may  be  found  in  the  ex- 
perience of  the  railroad  avenue,  which  brings  the  steam  traffic 
together  of  three  important  railroads.  The  whole  passenger 
traffic  of  the  Hudson  River,  and  New  York  Central  Railroad,  and 
the  Harlem  Railroad,  and  the  New  Haven  Railroad — the  whole 
transfer  of  passengers  in  a  year,  on  these  railroads,  including  all 
kinds  of  passengers,  way  and  through,  is  only  about  three  mil- 
lions and  half.  And  with  reference  to  the  transportation  of 
passengers  down  that  avenue  this  side  of  Harlem  river, 
why,  there  has  been,  perhaps,  no  strictly  accurate 
estimate  made.  Yet  I  am  assured  by  competent  authority  that 
an  e  timate  of  three  millions  would  be  a  safe  one,  as  the  nom- 
inal burden  of  the  railroad  passengers  carried  by  the  united 
trains  of  those  three  railroads  coming  into  the  city  through 
Fourth  avenue  to  Forty-second  street — that  that  would  repre- 
sent the  annual  burden  of  the  transfer  of  passengers  down  that 
avenue.  Your  Honor  will  see  that  this  is  about  10,000  a  day. 
Now  this  road  is  to  accomplish  on  trestle  work  and  with  a  dou- 
ble track — a  transfer  that  is  to  approach  somewhat  at  leas:,  the 
burden  of  one  of  these  street  railroads.  Now,  how  much  of  an 
interference  with  safety  and  with  occupation  did  that  steam 
railroad  work  in  the  upper  part  of  this  island  or  such  use  of  it 
below  Forty-second  street  as  was  tolerated  down  to  Thirtieth 
street.  And  what  effect  did  that  produce  upon  the  occupation 
of  the  abutting  Jots  ?  Why,  the  population  was  driven  away 
from  it,  and  kept  away  from  it  by  these  dangers  and  by  these 


24 


disturbances.  Property,  for  occupation,  was  sacrificed,  and  the 
region  turned  into  a  waste.  And  it  was  only  when  that  road — 
not  up  in  the  air,  not  on  a  trestle  work,  but  confined  in  a  deep 
gully,  was  arched  over,  that  people  would  live  in  the  neighbor- 
hood. And  then  they  had  to  banish  steam  entirely  from  the 
overarched  tunnel,  and  when  the  excitement  growing  out  of 
the  presence  of  these  dangers  arose,  the  population  demanded 
that  this  instrument  of  danger  and  terror  should  be  disabled, 
and  the  city  was  induced  to  contribute  three  millions  as  half  of 
the  expenses  of  making  steam  transit  tolerable  on  an  avenue  of 
this  city.  And  now,  if  in  the  case  of  this  steam  road,  with  the 
advantage  of  a  firm  bed  on  the  earth's  surface,  these  dangers 
were  so  great  in  the  partially  unpeopled  and  untraveled  re- 
gions traversed  by  these  steam  trains  as  to  cause  them  to  be 
removed,  simply  to  avoid  collisions  on  the  surface,  your  Honor 
will  see  that  there  is  not  a  single  other  danger  to  life,  or  a 
single  other  disturbance  of  the  comfort  of  life,  that  is  not  in- 
tensified tenfold  by  mounting  this  enginery  on  stilts.  The 
danger  and  the  solicitude  about  danger  is  increased  tenfold 
by  this  elevated  traffic,  and  in  all  the  indirect  injuries  to  life 
and  the  disturbance  of  its  comfort.  The  comfort  of  passengers 
both  on  that  road  and  on  our  road,  all  the  pleasure  traffic,  all 
the  stopping  and  all  the  resorts  of  comfort  and  of  convenience 
and  profit,  all  that  makes  up  the  object  of  having  a  street  and 
having  a  city,  is  all  sacrificed  pro  ianto  to  the  convenience  of 
people  that  live  out  of  the  city,  and  want  to  get  into  it,  or  who 
live  in  the  city  and  want  to  get  out  of  it.  How  would  it  be  if 
all  the  streets  of  this  city  and  all  the  avenues  of  the  city  were 
occupied  by  this  trestle  work  and  ravaged  by  the  constant 
operations  of  this  enginery. 

You  would  desolate  the  city  in  order  to  make  it  convenient 
to  its  inhabitants.  You  would  make  it  unsuitable  to  both  for 
resort  and  for  occupation,  in  order  that  it  might  be  easily  ac- 
cessible. Such  is  the  monstrous  and  underlying  contrivance 
by  which  popular  necessities  and  demands  are  set  up  and 
made  the  means,  not  of  public  convenience,  but  of  private 
speculation.  It  will  answer  to  make  profit  out  of  the  imagina- 
tions of  men,  and  then  leave  the  enjoyment  of  it  to  the  benefit 
of  whom  it  may  concern.  Xow,  I  think  I  have  said  enough  to 
your  Honor  to  make  it  quite  apparent  that  unless  some  power 
beyond  the  natural  right  of  the  citizen  has  authorized  this  in- 
trusion, every  citizen  has  a  right  to  destroy  it,  and  by  strong 


25 


reasons,  to  invoke  judicial  aid  to  suppress  it.  I  have  shown  to 
your  Honor  that  under  the  Act  of  the  Legislature  of  the  State 
of  New  York,  that  determines  the  conditions  upon  which  it 
should  be  possible  to  traverse  these  streets,  there  is  accorded 
to  this  corporation,  and  has  been  tolerated,  nothing  of  this  kind. 
And  now  I  proceed  to  consider  and  examine  what  is  the  imag- 
inary support  in  point  of  law,  and  how  it  conveyed  to  this  Gil- 
bert Elevated  Railway  the  authority  to  complete  a  structure  of 
this  kind  in  the  city. 

It  is  quite  apparent  that  if  the  Legislature  of  the  State  of 
New  York,  after  the  passage  of  the  amendment  to  the  Constitu- 
tion, had  undertaken,  under  the  guise  of  amending  the  charter 
of  this  road,  to  change  the  structure,  and  the  faculty  of  making 
Sj  sham  road  14  feet  high,  and  upon  a  support  of  this  kind;  by 
posts  in  the  middle  of  the  street,  and  to  permit  that  without 
the  consent  of  a  majority  of  the  property  owners,  or  without 
the  substitute  that  the  Constitution  allowed  in  case  of  a  failure 
to  obtain  that  consent ;  that  the  act  ivould  have  been  void  :  be- 
cause it  would  have  been  making  an  entirely  new  road  from 
the  date  of  the  new  enactment  and  dispensing  ivith  the  authority 
f  rom  the  residents  which  icas  required.  I  think  no  court  will 
support  that  circumvention  of  a  grave  and  well-considered  con- 
stitutional intervention  to  protect  private  rights  and  private 
interests,  allowing  the  mere  shred  of  an  existing  statute  to  be 
contrived,  and  all  the  powers  and  all  the  faculties  and  all  the 
inducements  and  all  the  conditions  which  rendered  it  possible 
in  the  original  enactment  to  be  now  exercised,  notwithstanding 
that  Constitution.  I  have  never  found  courts  inclined  to  stick 
at  the  letter  of  the  Constitution  and  subvert — 1  do  not  say  its 
spirit,  for  I  am  not  a  stickler  for  the  spirit  of  the  Constitution, 
as  against  its  true  meaning,  or  as  against  the  meaning  of  its 
language — but  its  plain  construction  and  its  obvious  intent  to 
prevent  this  mischief,  and  its  obvious  purpose  to  stop  this 
encroachment  upon  the  private  rights  of  the  people  of  this 
city,  at  least  where  it  stood  when  that  clause  of  the  Constitu- 
tion was  passed.  I  find  no  legislation  that  has  undertaken  to 
amend  the  charter  of  this  Gilbert  Elevated  Railway,  and  to 
make  that  possible  which  was  not  possible  before,  and  now  I 
find  the  sole  authority  in  the  alleged  permissibility,  by  a  con- 
struction of  a  certain  section  of  what  is  supposed  to  be  a 
general  act,  to  accomplish  what  a  general  act  could  not  ac- 
complish, if  it  had  been  framed  in  that  design.    For  it  is 


26 


admitted  upon  the  pleadings  that  this  railroad  that  proposes 
to  go  into  the  Sixth  avenue  and  erect  this  structure  and  operate 
it,  has  never  had  the  consent  of  a  majority  of  the  abbutting 
proprietors,  and  has  never  had  the  action  of  the  Supreme 
Court  in  the  substitute  for  that  consent  which  is  provided  by 
the  statute. 

Now,  let  us  see  first  the  act  itself,  and  question  it  on  its  face, 
on  its  constitutional^',  and  then  on  its  construction  as  admit- 
ting of  this  strange  invasion,  in  derision  of  the  Constitution,, 
and  of  the  rights  of  nil  the  owners  of  property,  which  is  sought 
to  be  practiced  for  private  gain  and  private  emolument,  and  is 
to  be  sustained  by  all  the  learning  and  all  the  ingenuity  which 
our  bar  can  furnish.  What  is  it  to  do  on  its  face  ?  It  is 
seeking  to  build  this  road  without  asking  the  consent  of  the 
abutting  proprietors  or  appealing  to  the  Supreme  Court  for  the 
substitution  for  the  consent  of  such  owners,  as  is  provided  by 
the  statute.  It  is  asking  to  do  it  under  an  act  passed  since 
the  constitutional  clause  was  adopted  and  under  an  act  that  has 
not  undertaken  in  terms  to  do  what  it  is  here  sought  to  be  ac- 
complished, and  which  would  have  been  wholly  repugnant  to 
the  constitutional  law.  Let  us  see  whether  we  are  indeed  such 
sticklers  for  the  phrases  of  the  law.  Now,  my  first  challenge 
of  this  act — and  upon  that  theory  this  case  is  to  be  tried — is 
that  it  is  on  its  face  non-constitutional  because  it  does  provide 
for  special  charters.  It  is  admitted,  I  suppose,  that  a  law 
creating  a  special  charter  for  any  set  of  people  to  lay  railroad 
tracks  or  have  any  special  privileges  would  be  unconstitutional, 
irrespective  now  of  the  subordinate  question  of  the  conditions 
of  consent  which  I  have  spoken  of.  Now,  your  Honor  will 
need  to  look  at  this  act  to  see  what  its  nature  is.  The  first 
five  sections  are  occupied  with  the  system  by  which  there  may 
come  into  being  certain  specially  defined  and  described  cor- 
porations that  may  build  certain  specified  and  defined 
railroads  on  certain  specified  and  defined  conditions,  and 
with  the  necessary  powers.  A  greater  part  of  the  statute, 
therefore,  is  occupied  with  what  constitutes  tiie  statement 
of  all  corporation  acts  that  require  the  condemnation  of 
property,  etc.,  and  contain  nothing  of  importance  relative  to 
the  question.  I  now  have  to  consider  the  36th  section.  This 
is  the  section  that  will  probably  need  to  be  considered  in 
discussing  the  construction  of  the  act  as  supporting  or  author- 
izing the  proceeding  that  this  Gilbert  Elevated  Railroad  Com- 


27 


pany  is  undertaken  to  begin  and  complete,  and  has  no  particu- 
lar relation  to  the  geneial  question  of  the  validity  of  this  act 
which  I  am  now  presenting  to  your  Honor. 

It  is  a  matter  of  primary  intelligence  that  the  Legislature  of 
this  State  cannot  devolve  legislative  power  upon  a  subordinate 
department  of  the  State  or  upon  the  people  of  the  State  except 
by  some  constitutional  provision  to  that  end.  All  that,  in  its 
nature,  belongs  to  legislative  power  is  by  the  Constitution 
vested  in  the  Legislature  composed  of  the  Senate  and  the 
House,  and  all  that  can  ever  become  legislation  in  this  State 
must  become  so  by  the  action  of  the  Legislature,  and,  to  be 
valid,  it  must  be  submissive  and  conform  to  the  general  consti- 
tutional requirements  either  in  the  manner  of  its  action  or  in 
respects  that  the  Constitution  requires.  Now,  the  Legislature, 
in  respect  to  this  subject,  could  only  pass  a  general  law  on  the 
matter  of  railroads  and  of  railroad  tracks  and  special  privileges,, 
and  whatever  came  from  the  legislative  power  must  be  thereby 
opened  to  the  citizens.  The  citizens  are  the  subjects  of  the 
law-making  power.  The  Legislatures  are  the  sole  depositaries 
of  the  law-making  power.  Whatever  takes  effect  as  law  must 
be  complete  when  it  leaves  the  Legislature.  Whatever  is 
binding  upon  the  subjects  of  law,  the  people,  is  complete  in  its 
force  when  the  legislation  is  enacted,  and  when  the  Constitution 
says  that  the  Legislature  shall  pass  only  general  banking  laws 
or  general  railroad  laws,  or  general  laws  on  any  of  the  manifold 
general  topics  of  right  that  may  be  enjoyed  or  franchises  that 
may  be  accorded,  it  means  that  when  the  law  leaves  the  Legis- 
lature there  is  no  co-operating  power,  and  no  intermediation 
between  the  governor  and  the  governed,  but  the  law  has  been 
laid  down  which  the  people  in  their  general  and  individual 
rights  equally  are  to  find  a  place  for  themselves  under,  in  their 
own  voluntary  and  accorded  action.  This  is  what  a  general 
law  means,  and  the  mischief  is  which  has  been  perhaps  too 
much  recognized  (perhaps  we  have  gone  too  far)  that  special 
relations  by  governmental  authority,  with  particular  citizens, 
shall  not  come  to  be  accepted  under  the  general  action  of  the 
Legislature  which  permits  general  action  by  the  citizens  in  their 
primary  and  individual  relations.  What  other  definition  do 
you  find  ?  A  general  law  on  any  subject  must  be  such  as 
within  the  range  of  that  subject  opens  by  the  law  to  the 
citizens  without  their  intervention  an  opportunity  to  avail  them- 
selves of  it.    In  other  words,  to  come  under  the  law  by  their 


28 


rights  as  citizens,  accorded  by  the  law.  Now,  there  being  a 
constitutional  clause  which  prohibits  the  Legislature  from  giv- 
ing a  special  charter  with  special  clauses  with  deliberate  and 
considered  adjustments  and  arrangements  to  particular  circum- 
stances and  things,  and  requiring  that  the  law  shall  be  general, 
and  not  thus  accommodated  and  adjusted  to  particular  in- 
stances and  interests,  if  the  Legislature  should  pass  a  general 
law  either  on  the  subject  of  banking  or  of  railroads  or  of 
insurance  companies,  that  a  commission  should  be  created, 
that  at  its  discretion  should  accord  special  charters  on  any  of 
these  subjects  according  as  upon  inquiry  they  should  find  right 
and  just,  would,  or  would  not,  that  be  a  law  which  satisfied  the 
requirements  of  the  Constitution  that  they  should  pass  only 
general  laws.  It  could  only  be  so  by  assuming  that  the  Legis- 
lature had  devolved  the  passage  of  special  charters  upon  other 
authority  and  did  not  exercise  it  itself.  But  our  Constitution 
does  not  permit  legislative  commissions  anyr  more  than  it  per- 
mits (and  nobody  ever  claimed  that  it  did  permit  legislative 
commissions)  the  Legislature  to  leave  it  to  the  people  them- 
selves to  sa}^  whether  such  and  such  a  thing  shall  be  clone. 

Now,  let  us  look  at  this  law.  What  would  be  a  special 
charter?  Where  would  be  the  designation  ?  To  what  would 
it  be  applied  ?  Why,  it  would  be  as  to  how  much  stock  it 
should  have,  as  to  what  conditions  and  terms,  as  to  what  kind 
of  specified  modes  and  as  to  what  should  be  the  acceptance  of 
this  or  that  application,  and  the  power,  upon  scrutiny,  to 
determine  whether  or  not  it  should  be  accepted.  And  now, 
with  these  general  remarks,  let  us  look  at  this  statute.  The 
general  railroad  act  (which  your  honor  is  sufficiently  familiar 
with  as  with  other  general  legislation)  provides  that  any  num- 
ber of  citizens  by  doing  so  and  so,  by  doing  what  that  statute 
requiies,  shall  ha^e  the  right  to  do  what  that  statute  allows.  It 
is  not  a  special  accord  of  franchises,  it  is  the  opening  of  com- 
mon rights  of  what  before  was  the  subject  of  special  franchises, 
and  which  under  the  old  system  could  have  been  communicated 
only  by  special  authority.  Now,  this  provides  that  "  whenever 
it  shall  appear  by  the  application  of  fifty  reputable  household- 
ers, etc.,"  that  there  is  need  in  any  county  of  a  steam  railway, 
or  railways,  for  the  transportation  of  passengers,  etc.,  *  * 
the  Board  of  Supervisors  of  said  county  may  appoint  five 
commissioners,  who  shall  be  residents  of  the  said  county,  and 
who  shall  have  full  power  and  authority  to  do  and  provide  all 


29 


that  they  are  hereinafter  directed  to  do  and  provide,''  and  then 
is  designated  the  functions  which  devolve  upon  them :  They 
are  to  give  bonds  ;  they  are  to  meet.  Now,  what  are  they  to 
do:  "Said  commissioners  shall,  within  thirty  days  after  such 
organization,  determine  upon  the  necessity  of  such  steam  rail- 
way or  railways,"  that  is  a  specified  steam  railway  or  railways, 
"  and  if  they  find  such  railway  or  railways  to  be  necessary  in 
such  county,"  there  is  the  function  of  determining  whether  a 
special  road  in  a  special  place  for  a  special  need  and  for  a 
special  purpose  shall  or  shall  not  by  governmental  power 
come  into  exercise  and  play.  And  what  is  that  but  a  Legislature 
passing  a  special  charter '?  What  else  is  it  but  a  Legislature 
saying  that  in  such  and  such  a  place,  and  of  such  a  length,  and 
for  such  time,  there  shall  be  a  railroad  built.  And  now  this 
generality  is  satisfied  by  devolving  upon  a  governmental  com- 
mission the  power  of  a  Legislature  to  make  a  special  charter. 
Then  it  says  they  are  to  "  fix  and  determine  the  route  or 
routes,  "  that  is,  to  have  exclusive  power  to  locate  the  route  or 
routes  of  such  railway  or  railways  over,  under,  through  or  across, 
the  streets,  avenues,  places  or  lands  in  such  county,  "  except 
certain  streets  of  this  city,  and  certain  other  places."  Xow, 
look  at  the  general  railroad  act.  It  is  no  longer  a 
special  right,  it  is  no  longer  a  special  franchise ;  it 
is  made  a  common  right  of  the  people  of  this  State 
to  build  railroads,  the  same  as  it  is  to  sell  groceries.  That  is 
what  is  meant  by  a  general  law.  It  is  the  right  to  do  what  is 
permitted  on  the  conditions  that  are  named  by  the  Legislature, 
and  which  is  made  a  matter  of  general  and  common  right. 

The  4th  section  proceeds  to  repeat  the  constitutional  re- 
quirements of  the  consent  of  the  proprietors  on  the  road,  or  the 
action  of  the  Supreme  Court  in  lieu  of  such  consent. 

The  5th  section  provides  that  the  said  commissioners  having 
by  such  public  notice  as  they  may  deem  most  proper  and 
effective  under  such  conditions,  and  with  such  inducements  as 
to  them  may  seem  most  expedient"  (all  a  matter  of  government- 
al power  tvholly  in  their  discretion)  invited  the  submission  of 
plans  for  the  construction  and  operation  of  such  railway  or 
railways,  the  said  commissioners  shall  met  t  at  a  place  and 
decide  upon  the  plan  or  plans  for  the  construction  of  the 
particular  road  that  they  have  fixed  upon  and  in  the  locations 
determined  by  them.  What  more  could  there  be  in  a  special 
legislative  charter  than  that  very  thing,  determining  whether  there 


30 


shall  be  a  particular  road,  determining  the  special  conditions  on 
which  people  should  be  allowed  to  build  that  very  road,  in  that 
very  place. 

Where,  is  theioisdom  of  the  great  lawyers  of  the  Legislature  that, 
though  they  could  circumvent  the  will  of  the  people  of  this 
State,  and  avoid  making  a  private  charter  by  giviDg  five  men 
the  means  and  the  power  of  making  private  charters  as  they 
saw  fit  ?  The  6th  section  goes  on  to  provide  that  the  said 
commissioners  shall,  within  the  like  period  of  ninety  days,  fix 
and  determine  the  time  within  which  such  railway  or  railways 
shall  be  constructed  and  ready  for  operation  together  with  the 
maximum  rates  to  be  paid  for  transportation  and  conveyance 
over  such  railway  or  railways,  and  the  hours  during  which 
special  cars  or  trains  shall  be  run  at  reduced  rates  of  fare.  They 
shall  also  fix  and  determine  the  amount  of  capital  stock  of  the 
company  to  be  formed  for  the  purpose  of  constructing,  main- 
taining and  operating  such  railway  or  railways ;  and  the 
number  of  shares  into  which  such  capital  stock  shall  be  divided, 
and  the  percentage  thereof  to  be  paid  in  cash  on  subscribing 
for  such  shares.  What  would  there  be  in  a  special  charter 
passed  by  the  Legislature,  but  this  very  thing  that  I  have  here 
indicated,  to  wit :  that  on  certain  terms,  not  general,  not  common, 
not  prescribed  by  a  general  Imv,  a  particular  railroad,  in  a 
particular  place,  of  ^particular  amount  of  capital,  of  ^particular 
number  of  shares  of  stock,  of  a  particular  rate  of  speed,  of 
particular  fares,  shall  come  into  existence  by  a  vote  of  five  com- 
missioners. Do  they  execute,  in  a  mere  ministerial  relation,  the 
free  and  declared  will  of  the  Legislature  ?  No ;  the  free  and 
declared  will  of  the  Legislature  is  that  the  commissioners  shall 
fix  all  these  things  to  satisfy  themselves.  There  was  no 
measure  or  scope  or  degree  of  legislative  discretion  that 
before  this  constitutional  amendment  resided  in  the  Legislature, 
that  is  not  by  this  act  conveyed  to  five  commissioners.  Is  it, 
then,  set  forth  a  general  law  that  the  citizens  of  this  State  find 
openings  to  them  the  right  as  citizens  to  do  this,  that  and  the 
other  thing  ?  No  ;  nothing  but  a  power  to  an  intermediate 
sovereignty  to  lay  down  special  laws  for  particular  sections. 
Now,  if  the  constitutional  amendment  can  admit  of  as  great 
freedom  as  if  it  did  not  exist ;  all  you  have  that  makes  the  state 
of  things  worse  than  if  you  had  no  constitution  at  all  is,  that 
you  must  violate  common  sense  and  common  justice  to  get  rid  of  the 
Constitution. 


The  7th  section  provides  that  the  said  commissioDers  shall 
prepare  appropriate  articles  of  association. 

What  under  heaven  is  that  Imtdrawing  a  special  charter  ?  Is  it 
citizens  making  their  charter  within  the  range  that  the  Legisla- 
ture has  allowed  by  a  general  charter  ?  Not  at  all ;  its  govern- 
mental faculty  and  function  is  to  draw  a  special  charter  which 
the  Legislature  could  not  possibly  do,  "in  which  said  articles 
of  association  shall  be  set  forth  and  embodied  as  component 
parts  thereof,  the  several  conditions,  requirements  and  parti- 
culars by  said  commissioners  determined,  pursuant  to  sections 
4,  5  and  6  of  this  act,  and  which  further  shall  provide  for  the 
release  and  forfeiture."  One  would  think  that  the  terms  upon 
which  this  special  charter  was  to  be  forfeited  in  a  particular 
■case  was  a  matter  specially  arranged  for  the  accommodation 
of  that  case  and  not  subordinating  them  to  a  common  right. 

Then  it  goes  on  to  say  that  they  shall  forfeit  all  rights  and 
franchises  acquired  by  such  corporation  in  case  such  railway 
or  railways  shall  not  be  completed  within  the  time  and  upon 
the  conditions  therein  provided.  Then  they  shall  open  books  ; 
then  there  is  the  election  of  directors,  and  then  a  certificate  is 
given,  and  then  the  special  corporation  is  made.  Did  it  make 
itself  under  a  general  law?  I  think  not.  Did  the  Legislature 
make  it  ?  They  could  not.  That  is  the  only  reason.  What  they 
did,  they  did  through  the  Legislature  ;  but  it  was  not  govern- 
mental action.  And  if  there  wTas  any  virtue  in  what  the  com- 
missioners did  in  the  way  of  governmental  authority  or  in  the 
exercise  of  governmental  discretion,  they  did  it  because  the 
Legislature  could  do  it.  If  the  Legislature  could  not  have  done 
it,  it  conld  not  depute  the  power  to  the  commissioners.  You 
cannot  have  a  ministerial  relation  intervening  between  the  de- 
clared power  given  by  the  Legislature  and  the  people,  to 
whom  the  power  is  given  by  special  charter  or  by  general  law  ; 
but  this  framework  is  a  devolution  upon  this  commission  of  five 
of  the  whole  question  whether  there  shall  be  a  railroad,  where 
it  shall  be,  what  it  shall  be,  how  it  shall  be  restricted,  how  it 
shall  be  governed,  what  its  stock  shall  be,  what  the  expression 
of  its  charter  shall  be,  and  from  that  and  the  authentications 
of  that  action  springs  into  existence  a  charter  made  by  govern- 
ment and  not  by  the  corporators,  and  not  by  common  right.  I 
am  sure,  if  your  Honor  please  (wTith  great  respect  to  the  inge- 
nious minds  that  can  contrive  this  legislation)  that  it  would 
not  have  been  in  that  shape  if  that  clause  of  the  Constitution 


32 


had  not  been  made.  Nobody  ever  saw  such  a  monstrous  de- 
sertion of  legislative  responsibility  until  this  fundamental  clause 
required  that  there  should  be  no  special  legislation  on  the  sub- 
ject. And  they  satisfied  themselves,  therefore,  with  giving  a 
general  legislative  partition  of  powers — not  of  the  right  of  citi- 
zens to  conform  to  a  general  law,  but  of  legislative  power  to 
certain  commissioners  appointed  by  government  and  for  gov- 
ernment, to  determine,  arrange,  accord  and  express  all  that 
makes  up  the  private  privileges  and  the  private  charter  of  a 
particular  corporation.  You  would  have  as  many  different 
rights  in  these  corporations  as  you  have  commissioners.  Now 
one  thing,  and  now  another.  One  thing  in  Buffalo,  and  another 
thing  in  New  York  ;  one  thing  in  Troy,  and  another  in  John 
Brown  s  Tract.  Under  a  generality  you  have  found  out  the 
foundations  of  making  corporations,  and  have  broken  down  your 
Constitution,  if  this  can  stand  as  a  power  that  it  is  lawful  for 
the  Legislature  to  devolve. 

Another  general  constitutional  objection  is,  that  in  the 
operation  of  this  act  (it  is  created  by  valid  enactment  so  far  as 
the  question  is  between  the  State  and  the  right  of  the  Gilbert 
Elevated  Railroad  to  put  its  road  over  this  road  of  ours)  that 
it  is  an  act  of  the  Legislature  which  violates  the  contract  made 
between  the  city  of  New  York  and  the  Sixth  Avenue  Railroad 
Company,  and  that  there  is  no  reservation  of  authority  any- 
where that  justifies  such  a  violation.  What  I  have  said  in  ex- 
plaining the  practical  and  material  features  of  this  structure  in 
its  operation  will  enable  your  Honor  to  see  whether  or  no  it  is 
a  violation  of  the  contract  which  is  accorded  to  this  company 
by  the  instrument  executed  between  the  city  and  this  company 
plaintiffs,  and  sanctioned  by  the  city.  Supposing  there  were 
no  execution  of  a  power  reserved  to  alter  the  charter  of  the 
railroad  company  running  from  Albany  to  Buffalo,  and  it  was  a 
contract  protected  by  the  Constitution  of  the  United  States  (under 
the  Dartmouth  College  case),  would  it  or  not  be  a  violation  of 
that  contract  to  allow,  fourteen  feet  above  that  road  and  on  its 
bed,  the  building  of  a  trestle  work  and  the  running  of  a  rail- 
road on  its  track,  over  its  bridges,  on  the  ground  that  it  did  not 
interfere  with  the  surface  railroad,  and  only  used  what  had 
been  accorded  to  the  surface  railroad  for  surface  purposes,  to 
prop  up  an  air-line  railroad  fourteen  feet  above  the  track?  I  think 
that  would  be  a  violation  of  the  Constitution,  and  it  will  be  for 
our  learned  friends  to  point  out  why  it  is  not  a  violation  of 


33 


the  contract  of  the  city  with  us,  for  the  State  to  authorize  such 
a  transaction  as  this. 

I  now  come  to  the  consideration  of  the  construction  of  this 
act.  Supposing  it  to  be  valid  under  the  Constitution,  and  sup- 
posing that  certain  powers  and  rights  may  be  communicated 
by  the  action  of  this  Board  of  Commissioners  to  railroad  cor- 
porations that  may  spring  into  existence  by  virtue  of  that  act, 
and  derive  their  powers  under  it,  and  have  no  limitation,  ex- 
cept what  is  accorded  to  the  discretion  of  the  legislative  board  ; 
supposing  all  that,  how  does  the  Gilbert  Elevated  Railroad 
Company  come  within  the  movement  of  this  general  statute, 
so  as  to  get,  not  only  a  road,  but  to  get  a  road  free  from  all 
the  substantial  guarantees  of  private  right  and  of  public  con- 
venience that  are  affixed  upon  that  statute  by  the  Legis- 
lature. If  this  act  had  in  view  objects  which,  in  good  faith 
and  in  a  public  sense,  could  be  desirably  accomplished  to 
suit  the  public  need,  in  the  city  of  New  York,  of  a  railroad 
that  should  have  the  energy  and  the  rapidity  of  motion  for  its 
trains  that  would  make  the  rapid  transit  and  transfer  of  great 
masses  of  people  to  serve  the  public  need,  the  place  where  it 
should  be,  and  the  scheme  on  which  it  should  be  possible  and 
available  and  safe,  were  all  left  open  to  the  discretion  of  the 
public  and  to  public  discussion ;  with  no  conditions,  except 
what  would  accomplish  a  structure  operated  consistently  with 
the  existence  and  the  preservation  of  the  necessary  interests 
of  the  city  of  New  York,  and  would  also  meet  the  occasion  of 
its  population  for  rapid  transfer,  back  and  foith.  Now,  undoubt- 
edly, the  Legislature  knew  that  this  immense  problem  could 
not  be  solved  by  make-shift  means,  nor  without  great  cost,  and 
the  question  was  whether  it  could  be  done  at  all,  or  done  for  a 
cost  that,  in  the  practical  eyes  of  the  people,  was  equivalent 
to  its  permitting  it  to  be  done  at  all.  But,  the  question  was  not 
whether  something  could  be  done  that  was  not  rapid  transit, 
and  was  not  safe,  and  was  not  consistent  with  common  right, 
and  was  not  consistent  with  the  main  objects  by  which  popu- 
lation was  concentrated  here.  That  was  not  the  proposition. 
But,  it  would  cost  a  great  deal  of  money ;  and  there  was  a 
provision  for  rapid  transit  from  Forty-second  street  upward,  in 
a  safe,  firm,  secure  way,  which  was  accomplished  at  great 
public  cost,  as  well  as  the  expenditure  of  private  capital. 
There  needed,  only,  to  supply  the  space  between  the  business 
centres  of  the  city  and  this  railway.    The  conditions,  necessa- 


34 


rily  and  primarily,  were  that  it  should  be  straight ;  that  it 
should  be  safe  ;  that  it  should  be  short  ;  and  that  it  should  be 
consistent  with  the  rights,  and  should  meet  the  demands,  of  the 
people — the  paramount  and  controlling  lawgivers  of  the  whole 
transaction.  Why,  the  reports  of  the  commissioners  say  that 
they  were  shut  up  ;  shut  up  to  what  ?  Why  ;  shut  up  to  mak- 
ing such  a  charter,  and  giving  such  a  road  as  these  people  de- 
manded and  prescribed  for  themselves.  And  now,  how  is  it 
with  the  scheme  which  might  have  given  us  rapid  transit  by 
taking  an  avenue,  and  at  a  sunken  or  elevated  grade,  shall  be 
safe,  firm  and  strong,  and  free  from  injury  to  anybody  else,  and 
at  an  expense  that  that  system  would  involve.  Hoiv  is  it 
avoided  ?  It  would  cost  $5,000,000  to  build  such  a  road,  we 
are  told,  from  the  City  Hall  to  Forty-second  street,  and  then, 
it  would  be  done  for  all  time,  and  then,  alt  the  conflicting  interests, 
and  the  general  desires  ivould  be  satisfied,  so  far  as  the  inexorable 
limits  of  human  affairs  will  permit.  But,  the  men  that  build 
that  road  would  have  to  take  the  $5,000,000  out  of  their  own 
pocket.  Now,  it  is  demonstrable  by  the  experience  of  elevated 
railroads,  in  their  limited  interference  with  partially  unimport- 
ant property,  and  population,  in  the  sense  I  am  alluding  to 
now,  that  they  degrade  property  from  25  to  30  per  cent.,  50  per 
cent.,  60  per  cent.  Isn't  that  taking  somebody's  property  to  build 
the  rapid  transit  rood.  It  is  not  taking  property  from  the  men 
who  build  it  and  get  the  emoluments,  but  it  is  talcing  the  property 
of  others,  and  so  this  very  avenue,  growing  constantly  in  value, 
and  placed  almost  at  the  head  of  the  shopping  avenues  of  this 
city,  is  really  to  suffer  the  degradation  of  property  that  cannot 
be  put  lower  than  $25,000,000  or  $30,000,000,  taken  out  of  the 
pockets  of  our  citizens,  and  not  accomplishing  a  public  service, 
by  a  special  charter  or  legislation.  Why,  if  your  Honor  please, 
all  these  habitations  of  men,  after  this  road  is  built,  will  pre- 
sent the  same  relative  aspect  that  the  naked  boughs  and  empty 
birds'  nests  in  winter  do,  to  the  foliage  and  the  soul  of  sum- 
mer ;  all  threatened  by  this  monstrous  invasion  of  private 
rights. 

Now,  "  what  did  they  do  ?"  They  laid  out  a  route  that,  in 
their  discretion,  they  thought  would  meet  the  exigencies  of  the 
public,  and  which  would  be  short  and  straight,  and  safe  and 
suitable.    What  was  that  route  ? 

You  must  assume ,  that  they  laid  out  a  route.  They  could 
not  lay  out  a  route  that  was  prohibited  by  the  act,  I  suppose. 


35 


I  should  think  they  could  not ;  and  what  does  the  act  say  as 
to  their  power  in  laying  out  a  route?  Section  4.  "The  Com- 
missioners shall  have  exclusive  power  to  locate  the  route  or 
routes,  except  between  Third  avenue  and  Sixth  avenue,  or 
across  any  of  the  public  parks — that  is,  all  over  the  city  of 
New  York,  except  in  Broadway i  and  on  Fifth  avenue,  below 
Fifty -ninth  street,  and  Fourth  avenue  in  Forty-second  street, 
in  the  city  of  New  York.  Then-  powers  were  taken  out,  from 
laying  out  a  route  that  crossed  Broadway  ;  that  they  could  not 
clo.  This  route  crosses  Broadway.  How  will  they  get  out  of  it? 
If  they  say  that  they  laid  out  a  route,  and  this  is  the  route, 
it  is  void.  If  they  did  not  lay  out  a  route,  there  is  no  power  to 
build  any  road  upon  it.  There  is  a  provision,  in  the  36th  sec- 
tion, to  which  I  now  ask  your  Honor's  attention.  When  these 
routes  were  laid  out  under  the  law,  something  might  be  found 
to  exist  in  respect  of  right  and  privilege  under  previous  legis- 
lation. "  Whenever  a  route  or  routes  determined  upon  by  said 
commissioners  coincide  with  the  route  or  routes  covered  by  the 
charter  of  an  existing  corporation,  formed  for  the  purpose  pro- 
vided for  by  this  act,  providing  such  corporation,  &c.,  such  cor- 
poration shall  have  a  "  like  power"  to  construct  and  operate 
such  railroad  or  railroads,  upon  the  fulfillment  of  the  require- 
ments and  conditions  imposed  by  such  commissioners  as  a 
corporation  especially  formed  under  this  act."  Finally,  the 
Legislature  concludes,  giving  them  power  to  go  upon  any  route 
or  routes  with  which  they  may  connect,  that  is.  on  their  own 
routes  with  these  new  routes  that  are  laid  out,  "  but  subject 
to  the  requirements  as  to  the  connection  and  conditions,  and 
section  18th  of  article  3d  of  the  Constitution  of  this  State." 

Now,  the  point  is,  that  a  route  laid  out  lawfully,  and  opened 
to  the  corporation  specially  founded  under  this  act,  whenever 
that  by  the  power  of  this  commission  has  been  brought  into 
existence,  then  if  there  is  another  road,  another  corporation 
that  has  a  route  coincident  with  that  lawful  route,  it  shall  use 
that  lawful  route  just  as  these  commissioners  might  have 
authorized  a  special  corporation.  Then,  what  was  the  route 
that  this  commission  elects,  and  that  this  road,  by  coinciding 
with  it,  is  allowed  to  use  ?  It  was  a  route  that  crossed  Broad- 
way in  two  places.  Could  a  specially  formed  corporation, 
coming  into  existence  by  power  of  those  commissioners,  have 
built  on  a  route  that  crossed  Broadway  ?  It  is  excepted  from 
the  very  grantina  pmver  of  the  discretion  and  authority.  The 


36 


scope  and  area  of  legislative  faculties  accorded  to  these  com- 
missioners "  excepts"  that  they  shall  not  be  able  to  authorize 
a  route  over,  under,  through  or  across  Broadway.  Now,  we  have 
another  of  those  interesting  conditions  which  a  corporation 
that  has  not  any  poiuer  of  its  own  can  come  into.  It  can  repeal  the 
requirements  of  getting  consent  from  the  landowners,  repeal 
the  condition  of  the  Supreme  Court's  inspection ;  repeal  the  ex- 
ception of  crossing  Broadway,  which  all  the  power  conferred  by 
that  law  as  an  original  creation,  could  not  have  vested  in  any- 
body ;  and  all  that  grows  out  of  their  being  under  a  coincidence 
found  between  a  route  that  had  been  given  to  somebody  else, 
and  a  route  in  the  discretion  of  these  commissioners  allowed 
to  be  built  under  this  act.  Had  these  commissioners  laid  out 
a  route  "over"  and  "across"  Broadway,  then  it  is  void;  a 
coincidence  with  a  void  route  would  not  accomplish  a  result  of 
coincidence  with  a  route  that  was  legal.  So  it  seems  that  this 
route  could  not  be  "  coincident  with"  because  it  could  not  exist 
in  point  of  law,  and  on  that  ground  the  justification  set  up  by 
authority  under  this  act  to  build  this  road  in  this  route — for  it 
is  only  as  this  route,  and  as  a  part  of  this  route,  and  as  an  ac- 
complishment of  rapid  transit  to  the  complete  extent  and  course 
of  the  projected  road,  that  it  is  justified  at  all,  or  can  come  in  by 
virtue  of  this  act ;  nor  can  this  Gilbert  road  get  itself  into  a 
position  to  proceed  with  the  inquiry  whether  it  can  build  the 
kind  of  road  that  it  is  proposed  to  build  under  the  provision  of 
the  36th  section  which  I  am  considering;  bat  it  could  not  build 
upon  this  route  at  all  by  any  authority  of  any  commission,  be- 
cause this  route  could  not  exist  under  thai  statute. 

Now,  we  come  to  a  more  intimate  consideration  of  the  36th 
section. 

Supposing  the  route  to  be  a  lawful  one,  and  therefore  the 
predicament  of  coincidence  being  established  in  favor  of  this 
Gilbert  road,  it  is  within  the  power  of  commission  to  build  a 
road.  What  kind  of  a  road  could  it  build  ?  Its  charter  road, 
it  is  not  attempting  to  build  ;  it  is  not  pretending  to  build.  That 
I  have  already  sufficiently  explained.  Now,  the  Legislature 
having  never  allowed  it  to  alter  its  kind  of  road  under  the  clause 
which  is  said  to  give,  on  a  coincidence  of  route,  a  right  to  a 
chartered  road,  if  it  could  build  a  road  that  its  charter  permit- 
ted on  that  route,  can  they,  by  coinciding  with  the  route,  build 
a  road  different  from  what  their  charter  allows  ?  Is  it  a  modi- 
fication of  their  charter  ?    Is  it  changing  their  faculty  from 


8? 

being  a  pneumatic  road  on  arches  that  span  the  roadway  from 
curb  to  curb  and  are  fifty  feet  apart  ?  Under  that  coinciding 
of  route  is  this  a  change  of  their  charter  so  that  they  get  cor- 
porate functions  to  do  what  they  could  not  do  ?  No.  Now,  in 
the  36th  sectiodkonly  these  existing  corporate  routes  could  dis- 
play theinselvefpn  a  route  subject  to  such  conditions  of  dis- 
playing themselves  wifchin  that  charter  as  these  commissioners 
should  invoke.  Was  there  accorded  to  these  commissioners  the 
legislative  poicer  of  altering  the  charter  of  the  Gilbert  road  at  the 
commissioners'  discretion  ?  Then  it  was  void.  No ;  it  was 
simple  and  straightforward  as  can  be.  You  may  find  that  there 
are  existing  chartered  possibilities  of  building  a  road  according 
to  the  charter  or  routes  that  you  are  taking  up  for  your  espe- 
cially authorized  railways.  You  can  let  them  in  to  build  their 
chartered  road  on  such  conditions  as  you  find  suitable.  Not  to 
build  a  road  such  as  you  enacted  for  them,  and  enabled  them  to 
build,  and  their  charter  has  not  enabled  them  to  build.  Not  by 
any  means.  Why  could  not  these  commissioners,  on  this  co- 
incident route,  have  allowed  these  people  to  build  this  pneu- 
matic road  ?  The  people,  I  suppose,  do  not  want  them  to  build 
it  because  it  was  as  harmless  a  road,  after  the  Legislature  had 
permitted  it  to  be  constructed,  as  it  was  while  it  reposed  in  the 
inventive  mind  of  the  projector.  Nobody  had  ever  evinced  a 
desire  to  pay  a  dollar  of  good  money  for  a  pneumatic  road  40 
feet  in  the  air.  Then  the  Gilbert  road  could  not  build  a  rail- 
road here ;  and  then  the  commissioners  undertook  to  say,  you 
cannot  build  your  railroad  here,  but  we  will  let  you  build  a 
road  that  becomes  possible  only  by  our  legislative  discretion, 
and  possible  only  by  the  statute  of  1875,  and  possible  only  by 
getting  consent,  or  in  lieu  of  it,  the  allowance  of  the  Supreme 
Court.  We  will  permit  you  to  build  such  a  road  as  there  is  in- 
ducement to  build,  and  alter  your  charter  to  give  you  the  power 
to  build  it. 

Their  charter  is  not  altered.  If  it  is  altered,  who  alters  it  ? 
Is  it  not  therefore  a  private  special  piece  of  legislation  in  alter- 
ing the  charter  of  the  Gilbert  Railroad  Company?  Where  could 
it  find  its  place  within  any  general  law  under  our  constitutional 
provision  which  prohibited  a  discretion  ?  It  cannot  even  be 
repealed  or  modified  under  the  existing  statute  now,  without 
stating  the  part  that  you  repealed,  and  the  part  that  you  modi- 
fied, as  modified.    And  all  this  is  done  subservient  to  an  una- 


38 


credited  legislative  power,  which  transcends  all  the  power  that  in 
the  Legislature  possibly  exists. 

But,  suppose  they  could  alter  the  charter  of  the  Gilbert  road, 
or  that  the  charter  of  the  Gilbert  road  is  altered,  so  that  instead 
of  a  pneumatic  enclosed  arch-supported  track,  this  structure 
fourteen  feet  high,  alone,  propelled  by  steam,  and  not  by  pneu- 
matic power,  is  justified. 

What  was  the  authority  attempted  to  be  conferred  by  this 
section  on  a  discretionary  intrusion  of  an  existing  road  on  the 
property,  that  would  not  be  possible  for  other  corporations 
created  here  ?  What  does  that  mean  ?  What  are  the  condi- 
tions ?  Of  course,  the  condition  upon  which  alone  the  newly 
organized  special  corporation  springs  into  existence  under  this 
act,  to  do  the  work  proposed,  to  wit  :  getting  the  consent  of 
the  proprietors,  or  in  lieu  of  it,  the  sanction  of  commissioners 
appointed  by  the  Supreme  Court ;  and  yet,  no  word  has  been 
heard  of  that  the  consent  has  been  obtained,  and  they  actually 
stand  here  in  your  Honor's  court,  and  on  the  pavements  of  that 
great  avenue  of  the  city  of  New  York,  and  claim  to  do  what  no 
special  act  empowering  them  before  the  constitutional  enact- 
ment had  given  them  the  power  to  do  ;  and  no  special  act  could 
give  them  the  power  to  do  after  the  enactment  of  that  constitution- 
al clause  which  no  special  law  could  give  them  the  power  to  do, 
and  no  general  law  could  give  them  the  poiver  to  do,  what  no  gen- 
eral law  is  pretending  to  give  them  power  to  do  ;  and  any  trans- 
action that  owes  efficacy  to  its  authority  is  post  Jioc  to  its  date  ; 
and  this  alteration  of  its  power  assuming  to  do  what  nobody  of 
authorized  people,  legislature  or  courts,  can  sanction  for  a  mo- 
ment as  compatible  with  the  public  intention  of  the  law.  No 
one  pretends  that  it  is  a  creation  of  Omnipotence.  Ex  nihilo  nihil 
fit,  is  supposed  to  be  the  limitation  of  means,  and  it  is  supposed 
that  if  there  is  an  affluence  of  power  everything  is  created  un- 
der a  miracle.  Now,  all  this  is  created  out  of  nothing,  but 
from  authorities  that  are  utterly  incapable  of  the  energy  to 
create.  This  piecemeal  lapping  of  statutes  is  made  to  accom- 
plish what  no  infractor  of  complete  legislative  power  now  in 
existence  in  this  State  could  accomplish,  and  accomplishes  it  as 
of  a  date  subsequent  to  this  act  of  the  people  limiting  the 
Legislature  by  a  special  amendment  and  not  in  existence  be- 
fore. Now,  if  the  court  please,  these  are  the  general  views  of 
the  law,  and  if  they  find  acceptance  with  you  they  dispose  of 
the  subordinate  amendments ;  but  if  it  reaches  that  stage  of 


39 


the  discussion  as  to  the  recent  constitutional  amendment,  as 
construable  to  the  end  now  sought  to  be  accomplished  under 
its  authority,  then  you  are  brought  back  beyond  that  question 
I  have  adverted  to  of  the  infraction  of  the  Constitution  of  the 
United  States,  to  the  rights  of  citizens,  of  property  owners,  as 
represented  by  this  railroad  in  its  capacity  of  its  owning  this 
franchise  and  freehold  in  the  street  (as  the  Court  of  Appeals 
has  called  it),  and  the  owning  of  abutting  property,  for  their 
enjoyment,  and  the  right  of  a  common  citizen  to  abate  a  nuis- 
ance. You  are  then  brought  back  to  the  construction,  narrower 
than  those  I  have  suggested,  whether,  under  a  trust  title  so 
marked  and  described  in  the  source  of  the  title  that  it  shall  be 
forever  kept  open  to  be  used  as  "  public  streets  are  and  of  right 
ought  to  be  used,"  whether  a  structure  like  this,  that  intrudes 
into  the  road-bed  of  the  street,  divides  it,  partitions  it,  obstructs 
it,  is,  or  is  not,  taking  property  by  force  of  law  for  uses  that  in  its 
oivners'  hands  before  the  law  it  was  not  subject  to  or  possible  to  be 
used  for.  And  all  the  legislation  that  has  heretofore  been  sup- 
ported in  judicial  inquiries  resulting  certainly  to  the  extent  of 
authority  to  be  involved  in  favor  of  these  defendants,  in  the 
case  of  Kerr,  has  simply  undertaken  to  say,  is,  that  when  a  horse 
road,  with  tracks  and  vehicles  accommodated  thereto,  imposed  up- 
on the  surface  and  having  the  surface  for  traffic  and  transfer  in 
all  respects  as  aliuays  it  was  used,  and  "  of  right  ought  to  be 
used,"  it  is  not  a  violation  of  the  trust  or  of  the  power  which 
was  to  be  a  fee  when  it  was  acquired  by  the  prior  owners  by 
cession  or  compensation.  And  every  decision  which  has  un- 
dertaken to  pass  upon  the  question  of  a  railroad  track  that 
disturbs  the  surface,  the  grade,  and  deranges  the  general  and 
public  use,  or  the  order  of  its  surface  and  grade,  was  a  new 
easement,  and  was  therefore,  a  new  trust  subversive  of  the  trust 
and  fee.  Have  people  no  rights  as  cestui  que  trusts  ?  Can  you 
take  away  property  from  a  cestui  que  trust  because  you  turn  it 
into  a  public  benefit  or  devote  it  to  charity  ?  Has  any  court 
undertaken  to  state  that  a  use  of  this  street  inconsistent  (so 
judicially  held  upon  proofs,  inspection  and  deliberation)  with 
the  open  use  of  streets  as  they  have  been  and  of  right  ought 
to  be  kept,  that  that  is  a  taking  away  which  the  Constitution 
of  the  State  permits  from  abutting  proprietors,  from  the  city 
of  New  York  and  from  public  use  without  compensation  ?  Have 
not  all  the  adjustments  of  compensation  and  all  the  motives  of 
concession  been  measured  and  governed  by  the  maintenance 


40 


of  the  public  street  for  all  ?  Does  not  a  party  when  lie  buys  upon 
the  line  of  a  street  laid  out,  or  when  he  concedes  the  soil  in  front 
for  a  street,  deal  differently  from  what  he  does  when  he  buys  or 
concedes  on  a  strip  of  land  that  may  be  used  for  a  market  or  a 
slaughter  home  ?    Certainly  he  does. 

Now.  we  are  to  be  told  that  no  court  has  yet  told  us  that 
the  immense  investment  of  property,  these  lines  of  buildings,  all 
framed  and  shaped  with  their  present  arrangement,  because  of 
and  for  the  use  of  this  open  avenue  and  access,  are  now  to  be 
destroyed,  and  all  their  occupation  absolutely  superseded  by 
an  enactment  that  does  not  take  away  anybody's  property,  be- 
cause the  fee  is  left. 

I  regret,  if  your  Honor  please,  to  have  addressed  the  court 
so  long,  but  I  believe  I  have  "placed  before  your  Honor  the  gen- 
eral views,  which  I  submit  for  your  consideration. 


I 


